AMITY LAW SCHOOL , NOIDA

PROJECT TOPIC : SEPARATION OF

POWERS

SUBMITTED BY : SHREY TIWARI

ENROLLMENT: A3221514088
 DECLARATION

I declare that the project entitled Separation of powers is

the outcome of my own work conducted under the
supervision of Mr. UPANKAR CHUTIA ,Law at Amity Law
School, Amity University. Noida U.P.

I further declare that to the best of my Knowledge the

dissertation does not contain any part of any work, which has
been submitted for the award of any degree either in this
University or in any other University/Deemed University
without proper citation.

Shrey Tiwari

Dated: 2nd Nov, 2017

 Separation of Power.

The Separation of Powers is the division of the legislative, executive, and

judicial functions of government among separate and independent bodies.
Such a separation limits the possibility of arbitrary excesses by government,
since the sanction of all three branches is required for the making, executing,
and administering of laws. If all the powers is concentrated in one and the
same organ then there would arise the danger of enactment of tyrannical laws.
Separation of powers according to the French Enlightenment political
philosopher Baron de Montesquieu, is a model for the governance of
democratic states, having its origins in an ancient idea of mixed government.
The organs of the government, the executive, the legislature and the judiciary,
in a free democracy have to be kept separate and be exercised by separated
organs of the government.

Historical Background:

The origin of separation of powers can be traced back to Plato and Aristotle. In
the 16th and 17th century, French philosopher, John Bodin and British Politician
John Locke respectively had expressed there views about the doctrine of
separation on powers. But it was Montesquieu who formulated who
formulated the doctrine systematically, scientifically and clearly in his book,
Espirit Des Lois, (The spirit of laws) in 1748
In England after a long war between the parliament and the king, the
parliament triumphed in 1688.The King recognised the Legislative and the tax
powers of the parliament and the judicial powers of the courts. So from then
on the King exercised the executive powers, the parliament exercised the
legislative powers and the judiciary exercised the judicial powers. They did not
stick to this structural classification and so they changed to the parliamentary
form of government.

Separation of powers was a leading idea in medieval Europe under the name of
the two swords. Most thinkers agreed that power should be shared between
the State and the Church. But no convincing argument was produced for the
supremacy of one over the other. Those who argued that the State was
superior to the Church faced the fact that divine authority was supposed to be
conferred on kings at their coronation, and that religious authorities claimed
the power to excommunicate kings (as happened to King John of England).
Those who argued that the Church was superior to the State had to explain
away Jesus's command to Render therefore unto Caesar the things which are
Caesar's; and unto God the things that are God's. Thus there was a de facto
separation of power in medieval Europe.

The idea revived in the seventeenth century in response to renewed claims of

divine right and absolute sovereignty Locke distinguished the executive,
legislative, and federative powers, although he did not intend them to be
regarded as separate. He had in mind the British arrangement where
the executive was drawn from the legislature and answerable to
it. Montesquieu developed this into a full-blown theory of the separation of
the legislative, executive, and judicial powers
Both John Locke and Montesquieu derived there concepts of separation of
powers from the British constitutional history.

Division of Powers:

John Locke:

Locke attempted to distinguish between legislature, executive and judiciary

was what he called;

-Discontinuous Legislative power

-Continuous executive power
-Federative power

Discontinuous Legislative power:

This power included the general rule making power called into action from
time to time and not in a continuous fashion.

Continuous Executive power:

This included all the powers which we now call the executive and judicial.

Federative powers:
By federative powers he meant the power of conducting the foreign affairs.

Montesquieu

The concept received its first modern formulation in the work of Baron de
Montesquieu, who declared it the best way to safeguard liberty.

In the year 1748 Montesquieu stated that,

When the legislative and the executive powers are united in the same person
or body of magistrates, there can be no liberty because apprehension may arise
that the same monarch or senate will enact tyrannical laws and execute in a
tyrannical manner. No liberty if judicial power is not separate from the
legislative and executive, when it joins with legislative the life and liberty of the
subjects would be in exposed to arbitrary control for the judge would then be
the legislative. When it joins with the executive power, the judge might behave
with violence and oppression.

He divided power into three

The general Legislative Power.

An Executive Power as per the Federative powers as stated by John
Locke.
The civil Law Executive Power, including executive and judicial power.

Effects:
 The doctrine propounded by Montesquieu had tremendous impact on
the development of administrative law and functions of the government.
It was appreciated by both the English and American Jurists
Blackstone in the year 1765 published a book Commentaries on the
Laws of England observed that if the legislative, the executive and the
judicial functions where given to one man then there was an end of
personal liberty.

Defects:

Theoretically speaking- there was no separation of powers under the

British constitution. At no point of time was this doctrine applied in
England. The philosophers went on to say that, Montesquieu looked
across a foggy England from his sunny vineyard in Paris.
The doctrine was based on the assumption that the three functions of
the government are distinguishable from each other but in fact it is not.
It is not easy to draw a line of separation between one power and
another.
President Woodrow Wilson stated that, The government is not
machinery but a living thing .No living thing can have its organs offset
against each other. But rather life depends upon the co-operation of
these organs.

Adoption of this theory cannot be done in its entirety.

 It is not applicable in a modern welfare state because a modern welfare
state faces a number of problems dealing with complex issues of socio-
economic nature, which cannot be dealt without mutual co-operation of
the organs.
Distinction is possible only if the essential powers are not encroached
upon.
The mechanical division of the powers will not ensure to any individual
the liberty and freedom. Even though such a separation was absent in
England, the individual liberty was still protected.

Wades and Philips:

Separation of power according to them was that:

Same person should not form part of more than one of the three organs.
One organ should not control or interfere with the exercise of function
of another organ.
One organ of the government should not exercise the function of
another.

Though the doctrine is not fully accepted, the one common factor that the
entire jurist felt was that the judiciary has to be independent from the other
organs; there will be no liberty if the judiciary is not separate from the
executive and the legislature.
Justice Louis D. Brandeis said: The doctrine of the separation of powers was
adopted by the convention of 1787, not to promote efficiency but to preclude
the exercise of arbitrary power. The purpose was, not to avoid friction, but, by
means of the inevitable friction incident to the distribution of the
governmental powers among three department, to save the people from
autocracy

The value of the doctrine wholly depends upon the check and balances of the
organs of the government which is very much necessary to prevent the abuse
of enormous power.

The Doctrine of Checks and Balances:

The Doctrine of Checks and Balances refers to the idea that no one branch of
government can do something without any other branch of government being
able to review that action and, possibly, stop it. Thus, the legislature can pass a
law, but the President can veto it - that veto power is a check against the
power to pass laws. However, the legislature can pass a bill over a presidential
veto, so long as there are enough votes. Thus, that power is another check
against the President's veto power. These checks create a balance of power,
where no one branch of government has too much authority.

Essence of doctrine is that powers of government are distributed amongst the

three branches so that, in any given exercise of power, one branch has the
capacity to check and balance the powers of another branch.
The Doctrine of check and balances has been a key factor in the separation of
powers. It is the check and balance that restrict the arbitrariness of the organs.

When the executive is not enjoying the confidence of the parliament, as an

action of check the non confidence motion is brought forward and following
that a balance is maintained. Similarly when the legislative act beyond the
scope of the powers given to them the judiciary checks the legislations brought
forth and if found ultravires will deem the legislation as void.

Similarly the executive checks the parliament, when a bill has to be passed the
asset of the president is required and in the president has the powers to veto
the bill if he feels it is unjust.

Separation of power in various Constitutions:

United States of America:

President Woodrow Wilson stated that, The government is not machinery

but a living thing .No living thing can have its organs offset against each other.
But rather life depends upon the co-operation of these organs.

The drafters of the constitution felt the need for separation of powers
Separation of powers is implicit in the American constitution, but it is not
rigorously applied, a bill passed by the congress can always be vetoed by the
president to this extend the president may be said to be exercising the
legislative functions.
There have a number of loops created with in the theory by the constitution
itself;

Delegated legislation (i.e.) the court conceded that the legislative

powers could be confined to the executive. This does not mean that
unlimited powers can be confined upon the executive.
Development of independent statutory commission to regulate the new
areas of activity. They are endowed with the triple function of passing
legislations, executing them and finally there adjudication.

United Kingdom:

Montesquieu had based his doctrine of separation of powers based on the

British scenario, but at no point of time was this doctrine adopted. Though the
three powers are distributed between the three organs it cannot be said that
there is no sharing out of power of the government.

The Lord Chancellor is the head of the judiciary, chairman of the House of
Lords and also a member of the cabinet.

As to the exercise by one organ of the functions of the other organ, no

separation exists in England. The House of Lords combines both judicial and
Legislative functions. The whole house of lords constitutes, in theory, the
highest court of the country. By constitutional conventions the judicial
functions are appointed by specially appointed law lords. Legislative and
adjudicatory powers are being increasingly delegated to the executive, which
distracts from an effective separation of powers.
France;

Separation of powers has been adopted in the strict sense in France. The
system of administrative law that prevails in France is called as Droit
Administratif; this system itself is a product of separation of powers. The
doctrine has meant in France that there should be separation between the
courts and administration. The system of Droit Administratif has resulted in
non interference by the courts in the working of administrative authorities.

The system of administrative tribunals is distinct from the ordinary courts

which have no jurisdiction on the administration; a person seeking any redress
against the administration has to go to an administrative court and not to an
ordinary court. All tribunals are subject to the supervision of Consiel dEtat,
which acts as the court of appeals from all administrative tribunals.

Most European countries like Belgium, Netherlands, Italy, Spain etc. follow the
French practice of double jurisdiction.

India:

A casual glance at the provisions of the Constitution of India, there is a general

inclination to say that the Doctrine of Separation of Power is accepted in India
(i.e.)
The Executive:

The Executive power of the union is vested in the President, who holds office
for a fixed period. Article 53, 74, 75, 77, 78, 299, 320, 310 and 311 of the
Constitution deal with the executive powers of President Further going down
to the lower levels of administration the Governor performs the executive
functions within the State as per Articles162, 154.

Article 53 vests all executive powers in President and empowers him to

exercise these powers directly by himself or through officers subordinate to
him. As per this article Supreme Command of the Defence Force of the union
shall be vested in the President and the exercise thereof shall be regulated by
law.

Article 74 says: (i) there shall be Council of Ministers with the Prime Minister at
the head to aid and advise the President who shall act in the exercise of his
functions, act in accordance with such advice. Provided that the President may
require the Council of Ministers to reconsider such advice, either generally or
otherwise and the President shall act in accordance with the advice tendered
after such reconsideration. (ii) The question whether any, and if so what advice
was tendered by ministers to the President shall not be inquired into in any
court.

Under Article 75, The Prime Minister shall be appointed by the President and
the other ministers shall be appointed by President on the advice of the Prime-
Minister. By 91st amendment, the total number of Ministers including the
Prime Minister in the Council of Ministers shall not exceed 15 per cent of the
total number of members of the House of the People. It shall be the duty of
the Prime Minister. (i) To communicate to the President all decisions of the
Council of Ministers relating to the administration of the affaires of the union
and proposals for legislation. (ii) To furnish such information relating to the
administration of the affairs of the union and proposals for legislation as
President may call for. (iii) If the President so requires to submit for
consideration of the Council of Ministers any matter on which as decision has
been taken by a minister but which has not been considered by the Council.

Article 77 talks about conduct of business of the Government of India. It says

(I) All executive actions of the Government of India shall be expressed to be
taken in the name of the President (II) Orders and other instruments made and
executed in the name of the President shall be authenticated in such manner
as may be specified in rules to be made by the President (III) The President
shall make rules for the more convenient transaction of the business of the
Government of India and for the allocation among ministers of said business.

Under Article 310, except as expressly provided by this Constitution, every

person who is a member of a defence service, or of a Civil Service of the union,
or an All- India Service, or hold any post connected with defence or any civil
post under the union holds during the pleasure of the President.

Article 311 Says - No person who is a member of a Civil Service of the union or
an All - India Service, or a Civil Service of the state or holds a civil post under
the union or a state shall be dismissed, or removed by an authority
subordinate to that by which he was appointed.

Under Article 320, President appoints Union Public Service Commission and
determines its functions.

Under Article 299 All contracts made in the exercise of the executive power of
the union shall be expressed to be made by the President and all assurances of
property made in the exercise of that power shall be executed on behalf of the
President.
Besides above mentioned powers the President appoints Chief Justice and
judges of the Supreme Court and the High Courts, Attorney - General, State
Governor and other high dignitaries of the State.

Under Article 154, the executive power of the State shall be vested in the
Governor and shall be exercised by him either directly or through officers
subordinates to him in accordance with this Constitution.
Under Article 162, states that the executive power of a State shall extend to
the matters with respect to which the Legislature of the State has power to
make laws.

The legislature:

The parliament is competent to make laws subject to the provisions of the

constitution; there is no limitation on the exercise of the legislative power. The
parliament can amend laws prospectively or retrospectively but it cannot declare
a judgment delivered by the court to be void. The main function of both the
Houses is to make laws. Every Bill has to be passed by both the Houses and
assented by the President before it becomes law. The subjects over which
Parliament can legislate are the subjects mentioned under the Union List in the
Seventh Schedule of the Constitution of India. Union subjects are those
important subjects which for reasons of convenience, efficiency and security are
administered on all. The principal Union subjects are defense, foreign affairs,
railways, insurance, communications, currency and coinage, banking, income
tax, customs, excise duties, atomic energy, census, etc.

Apart from the wide range of subjects allotted to it in the Seventh

Schedule of the Constitution, even in normal times Parliament can, under
certain circumstances, assume legislative power over a subject falling within the
sphere exclusively reserved for the States.

Further, in times of grave emergency when the security of India or any

part thereof is threatened by war or external aggression or armed rebellion, and
a Proclamation of Emergency is made by the President, Parliament acquires the
power to make laws for the whole or any part of the territory of India with
respect to any of the matters enumerated in the State List. Similarly, in the
event of the failure of the constitutional machinery in a State, the powers of the
Legislature of that State become exercisable by or under the authority of
Parliament. This apart, the Constitution also vests in the Parliament the
constituent power or the power to initiate amendment of the Constitution.

Besides passing laws, Parliament can by means of resolutions, motions

for adjournment, discussions, questions addressed by members to Ministers,
system of committees, etc., exercise control over the administration of the
country and safeguard people's liberties.

The Judiciary:
The Judiciary is also independent in its own way; there is interference by the
executive or the legislature. The judiciary has the power of judicial review and
can declare any laws passed as ultravires.

Judiciary is independent in its field and there can be no interference with its
judicial functions either by the executive or the legislature. Constitution
restricts the discussion of the conduct of any judge in the Parliament. The High
Courts and the Supreme Court has been given the power of judicial review and
they can declare any law passed by parliament as unconstitutional. The judges
of the Supreme Court are appointed by the President in consultation with the
Chief Justice of India and judges of the Supreme Court. The Supreme Court has
power to make Rules for efficient conduction of business.

It is noteworthy that Article 50 of the constitution puts an obligation over state

to take steps to separate the judiciary from the executive.