RULE OF LAW AND SEPERATION OF POWER: A

COMPARATIVE STUDY

Submitted to

Dr. Kaumudhi Challa

Faculty of Law

By

Shardul Vikram Singh

B. A. LL. B. (Hons.) Student
Semester – VI, Section – B, Roll No. 140

HidayatullahNationalLawUniversity
Uparwara Post, Abhanpur, New Raipur – 493661 (C.G.)
 Declaration

I, Shardul Vikram Singh, hereby declare that, this project report entitled “Rule of law and
Separation of Power: Comparative Study ” submitted to Hidayatullah National Law University,
Raipur is record of an original work done by me under the guidance of Dr. Kamudhi Challa,Faculty
Member, H.N.L.U., Raipur and that no part of this work has been plagiarized without citations.

Date: 18th March, 2019

Place: Raipur

Name – Shardul Vikram Singh

Roll no-140

Section- B

Semester- VI
 Certificate

This is to certify that the Project work done at Hidayatullah National Law University, Raipur
Chhattisgarh by Shardul Vikram Singh Roll no.140 has been found satisfactory. It has not been
submitted for any other examination and does not form a part of any other course undergone by
the candidate. It is further certified that he has made the project with all his sincerity and it has
been found authentic and not copied from any other project submitted earlier.

(Dr. Kamudhi Challa)

 Acknowledgements

Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard work
and honesty. This research venture has been made possible due to the generous co-operation of
various persons. To list them all is not practicable, even to repay them in words is beyond the
domain of my lexicon.
This project wouldn’t have been possible without the help of my teacher Dr. Kaumudhi Challa,
Faculty of Law at HNLU, who had always been there at my side whenever I needed some help
regarding any information. She has been my mentor in the truest sense of the term. The
administration has also been kind enough to let me use their facilities for research work. I thank
them for this.

Much Obliged,
Shardul Vikram Singh
Semester VI
Roll No.- 140
 LIST OF CASES

1. RatlaAjoy Kumar Banerjee & Ors. Etc v. Union of India & Ors., AIR 1984 SC 1130

3. A.K. Gopalan v. State of Madras, AIR 1950 SC 27; 1950 SCR 88;

4. Avinder Singh v State of Punjab (1979) 1 SCC 137

5. Bhatnagar & Co. v. Union of India, AIR 1957 SC 478

6. Devi Das Gopal Krishnan and Ors. v. State of Punjab [1967] 1 S.C.R. 557.

7. Gwalior Rayon Mills Mfg. (Wing.) Co. Ltd. v. Asstt. Commissioner of Sales Tax and Others

8. India Sugar Refineries Ltd. v. State of Mysore, AIR 1960 Mys 326.

9. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 3399, 2435.

10. Jayaiuilal Amratlal v. F. N. Rana AIR 1964 SC 648, 655: (1964) 5 SCR 294

11. L. Chandrakumar’s v Union of India AIR 1995 SC 1151

12. P.N. Kaushal etc. v. Union of India and Ors (1979) 1 SCR 122.

13. Panama Sugar Refining Co. v. Ryan, 293 US 388

14. Pratap vs. Shri Krishna Gupta AIR 1956 SC 140

15. Rajnarain Singh v. Chairman, Patna Administration Committee, AIR 1954 SC 569.

16. Ram Jawaya v. State of Punjab AIR 1955 SC 549.

17. Ram Manohar Lohia v. State of Bihar , AIR 1966 SC 740: (1966) I SCR 709.

18. S.P.Sampath Kumar v. Union of India AIR 1987 SC 386

19. Sambamurthy v. State of Andhra Pradesh (1987) I SCC 386

20. Union of India v. K. P. Joseph AIR 1973 SC

 LIST OF ABBREVIATIONS

1. A.C. Appeal Cases (Eng)

2. All E.R . All England Reports (Eng)

3. C.B.N.S. Common Bench Reports

4. C.L.R. Commonwealth Law Reports(NewSeries)

5. ex p. ex parte

6. Q.B. Queen’s Bench

7. SCC Supreme Court Cases

8. W.L.R. Weekly Law Reports

9. Edn. Edition

10. v. Versus

11. i.e. that is

12. Ors. Others

13. AIR All India Reporter

14. SC Supreme court

 CONTENTS

1. Declaration………..........................................................................................................i

2. Certificate……………………………………………………………………………..ii

3. Table of cases………………………………………………………………………….iv

4. Section 1- Introduction and Research Methodology………………..………………1-3

5. Section 2- Doctine of Rule of Law...................................…………………........4-5

6. Section 3- Doctrine of Separation of Power...................................……………….6-8

7. Section -4 Relationship between Rule of law and Separation of Power…….………9

8. Conclusion…………………………………………………………………………16

9. Bibliography……………………………………………………………………….17
7
 Chapter 1- INTRODUCTION AND RESEARCH
METHODOLOGY
1 (A) Introduction:

Rule of law is the supreme manifestation of human civilization and culture. It is an eternal value
of constitutionalism and inherent attribute of democracy and good governance. The term ‘Rule of
law’ is derived from the French phrase ‘la principe de legalite’ which means the ‘principal of
legality’. It refers to ‘a government based on principles of law and not of men’. In other words,
the concept of ‘la Principe de legalite’ is opposed to arbitrary powers.

It is a legal principle, of general application, which is sanctioned by the recognition of

authorities, and usually expressed in the form of a maxim or logical proposition called a "Rule,"
because in doubtful or unforeseen cases it is a guide or norm for their decision. The Rule of law,
sometimes called "the supremacy of law", provides that decisions should be made by the
application of known principles or laws without the intervention of discretion in their
application.
The term "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat,
baron de La Brède et de Montesquieu, an 18th century French social and political philosopher.
His publication, Spirit of the Laws, is considered one of the great works in the history of political
theory and jurisprudence, and it inspired the Declaration of the Rights of Man and the
Constitution of the United States. Under his model, the political authority of the state is divided
into legislative, executive and judicial powers. He asserted that, to most effectively promote
liberty, these three powers must be separate and acting independently.

Separation of powers, therefore, refers to the division of government responsibilities into distinct
branches to limit any one branch from exercising the core functions of another. The intent is to
prevent the concentration of power and provide for checks and balances.
While separation of powers is key to the workings of American government, no democratic
system exists with an absolute separation of powers or an absolute lack of separation of powers.
Governmental powers and responsibilities intentionally overlap; they are too complex and
interrelated to be neatly compartmentalized.

1
1(B) Research Methodology:
The paper is descriptive in nature and doctrinal in approach. It is largely based on secondary and
electronic sources. The researcher has mainly resorted to several online articles for the
completion of the project. However, the documentary material in the form of books and articles
in the library has also been referred to for the subject matter at hand. A uniform mode of citation
has been followed throughout the paper.
1(B). 1: Rule of law and separation of power and a comparative statement between them.

1(B). 2: Statement of Problem: The evolution of rule of law from the definition given by AV
Dicey and the development of separation of power and a comparative study between both the
doctrines.

1(B). 3: Rationale: In any democratic country the rule of law and its principles plays an
essential role and for the smooth functioning of the democracy the separation of power plays an
important role and further how both the doctrines complement each other.

1(B).4: Objectives: The objectives of this project are:

1. To study the concepts of rule of law and its development.

2. To study the development of concept of separation of power.
3. To study the comparison between rule of law and separation of power.

1(B).5: Review of Literature:

I.P. Massey, ADMINISTRATIVE LAW, Eastern Book Company, 7th ed., 2008 –

The book helps in finding out the concept of Rule of Law and explains that the concept by
various eminent jurists and authors. The book categorically lays down various case laws to
analyze the application of the concept in various nations.

M.P. Jain & S.N. Jain, PRINCIPLES OF ADMINISTRATIVE LAW, Lexis

NexisButterworths, 6th ed., 2013 – The book enunciates the factors leading to the growth of the
concept of Rule of Law. It also enumerates the development and growth of the concept by
eminent jurists like Dicey along with the criticisms of Dicey’s concept of Rule of Law.

2
Dr. U.P.D. Kesari, ADMINISTRATIVE LAW, Central Law Publications, 21st ed.,

2016 – The book helps in finding out the meaning of the concept of Rule of Law and explains
that the concept by various eminent jurists and authors. The book categorically lays down
various case laws to analyze the application of the concept in various countries.

C.K. Takwani, LECTURES ON ADMINISTRATIVE LAW, Eastern Book

Company, 5th ed., 2012- The book was helpful in understanding the adoption and application of
the concept of Rule of Law in the Indian legal system. It was also helpful for various judicial
pronouncements by the Supreme Courts and the High Courts of India for the better
understanding of the importance of the concept in respect to.

1(B).6: Concepts of Study: Evolution of doctrine of rule of law, landmark judgments, important
principles, development of rule of law and comparison between the both.

1(B).7: Hypothesis: The study focusses on the application of concept of Rule of law and
Separation of power. The history of the two theory has been dealt with and taken as to be
applicable in the contemporary world. Further the author assumes the application of rule of law
is necessary for separation of power in present scenario in India as well as other contemporary
legal system.

1(B).8: Research Design:

The nature of the study in this project is doctrinal and is primarily descriptive and analytical.
This project is largely based on secondary & electronic sources of data. Books, case laws,
journals & other reference as guided by faculty of Jurisprudence are primarily used for the
completion of this project.

1(B).9: Chapterization:

This project has been divided into 4 chapters. Chapter 1 comprises of Introduction and Research
Methodology. Chapter 2 includes the concept of rule of law and its defects and evolution of
concept of rule of law Chapter 3 details the development of separation of power in UK, USA and
India. The 4th Chapter discuss about the comparative study between both the doctrines. Chapter 5

3
discusses the Landmark judgements that lead to the evolution of rule of law and development of
separation of power in India.

1(B).10: Time Limit

It took the author roughly 7-8 days to complete this project in its entirety.

1(B).11: Contribution of Research:

A lot of ink has been spilled time and again to explain how the concept of rule of law has been
evolved from the definition given by A V Dicey to present scenario and the development of
separation of power over the time. This project seeks to initiate the discussion regarding the
relationship between both the two doctrines and hopes that in future more research would be
undertaken regarding the same.

1(B).12: Limitation of the Study:

Due to paucity of time and resources this project covers only the principle of rule of law and
separation of power in its theoretically and practical application in USA, United Kingdom and
India. Further the project devours into the basics of the two principle not going into much details.

4
 CHAPTER 2- EVOLUTION OF RULE OF LAW

The concept of Rule of law is of old origin. It is an ancient ideal, and was discussed by Ancient
Greek philosophers such as Plato and Aristotle around 350 BC. Plato wrote: “Where the law is
subject to some other authority and has none of its own, the collapse of the state, in my view, is
not far off; but if law is the master of the government and the government is its slave, then the
situation is full of promise and men enjoy all the blessings that the gods shower on a state”.
Likewise, Aristotle also endorsed the concept of Rule of law by writing that "law should govern
and those in power should be servants of the laws”.1

In UK, Sir Edward coke is said to be the originator of this concept, when he said that the king
must be under the god and law and thus vindicated the supremacy of law over the pretensions of
the executives. Later, Prof. Albert Venn Dicey developed this concept. He was an individualist.
He wrote about the concept of rule of law at the end of the golden Victorian era of laissez faire in
England. That was the reason why Dicey’s concept of the rule of law contemplated the absence
of wide powers in the hands of governmental officials. According to him, wherever there is
discretion, there is room for arbitrariness.2

In India, the concept of Rule of law can be traced to Upanishad. It provides that the law is the
king of kings. It is more powerful and rigid than the kings. There is nothing higher than law. By
its powers the weak shall prevail over the strong and justice shall triumph. Thus, in monarchy,
the concept of law developed to control the exercise of arbitrary powers of the monarchs who
claimed divine powers to rule. In democracy, the concept has assumed different dimension and
means that the holders of public powers must be able to justify publicly that the exercise of
power is legally valid and socially just.

The Rule of law, in UK, was developed over the centuries as a brake on arbitrary power. The
modern concept of Rule of law owes much to the great battles between the English kings and
their subjects, the struggle for supremacy between parliament and Stuart kings, and finally the
war between the British Empire and its American Colonies.

1
Wade & Forsyth, Administrative Law, p. 151-155 (9th Ed., Oxford, 2004)
2
Comparative analysis of Rule in Law in India and UK, available at http://www.legalserviceindia.com/article/l457-
Rule-of-Law-in-India-&-UK.html

5
Dicey’s Concept of Rule of Law

Dicey developed the contents of his thesis by peeping from a foggy England into a sunny France.
In France, Dicey observed that the government officials exercised wide discretionary powers and
if there was any dispute between a government official and private individual it was tried not by
an ordinary court but by a special administrative court. The law applicable in that case was not
ordinary law but a special law developed by the administrative court. From this Dicey concluded
that this system spelt the negation of the concept of rule of law which is secret of Englishman’s
liberty. Therefore, dicey concluded that there was no administrative law in England.3

In England, the doctrine of rule of law was applied in concrete cases. If a man is wrongfully
arrested by the police, he can file a suit for damages against them as if the police were private
individuals. In Wilkes v. Wood4 it was held that an action for damages for trespass was
maintainable even if the action complained of was taken in pursuance of the order of the
minister. In the leading case of Entick v. Carrington5 a publisher’s house was ransacked by the
king’s messengers sent by the secretary of state. In an action for trespass, 300 were awarded to
the publisher as damages. In the same matter, if a man’s land is compulsorily acquired under a
illegal order, he can bring an action for trespass against any person who tries to disturb his
possession or attempts to execute the said order.

Dicey’s formulation of the concept of Rule of law, which according to him forms the basis of
the English constitutional law, contains three principles:

1. Absence of discretionary power in the hands of the governmental officials. By this Dicey
implies that justice must be done through known principles. Discretion implies absence of rules,
hence in every exercise of discretion there is room for arbitrariness.

2. No person should be made to suffer in body or deprived of his property except for a breach of
law established in the ordinary legal manner before the ordinary courts of land.

3
Rule of law- we the people and beyond, available at http://www.legalserviceindia.com/article/l459-Rule-
oflaw.html.
4
98 ER 489.
5
95 Eng. Rep. 807 K.B. 1765.

6
In this sense, the rule of law implies:

a) Absence of special privileges for a government official or any other person

b) All the persons irrespective of status must be subjected to the ordinary courts of the land.

c) Everyone should be governed by the law passed by the ordinary legislative organs of the state.

3. The rights of the people must flow from the customs and traditions of the people recognized
by the courts in the administration of justice Dicey’s thesis has its own advantage and merits.
The doctrine of rule of law proved to be effective and powerful weapon in keeping
administrative authorities within their limits. It served as a touchstone to test all administrative
actions. The broad principle of rule of law was accepted by almost all legal systems as a
constitutional safeguard.6

The first principle (Supremacy of law) recognizes a cardinal rule of democracy that every
government must be subject to law and not law subject to the government. It rightly opposed
arbitrary and unfettered discretion to the governmental authorities, which has tendency to
interfere with rights of citizens.The second principle (equality of law) is equally important in a
system wedded to democratic polity. It is based on the well known maxim “however high you
may be, law is above you” and “all are equal before the law.”The third principle puts emphasis
on the role of judiciary in enforcing individual rights and personal freedoms irrespective of their
inclusion in a written constitution.

Dicey contrasted law with administrative action and discretion, and asserted that Rule of law
means absolute supremacy or predominance of regular law as opposed to the influence of
arbitrary power, the existence of arbitrariness, of prerogative or of wide discretionary authority
of the government. Even in those days discretion as they exercised it now. But what Dicey
probably criticized was exercise of discretionary powers not supported by law. He was not
wrong in asserting that in Britain the court was not powerless to grant relief, in respect of affairs
and disputes in which the government and its servants were concerned, but in France the
administrative tribunal alone could grant relief.

6
I.P. Massey, Administrative Law, Eastern Book Company, 7th ed., 2008.

7
Criticism of the Dicey Theory

Dicey’s first principle (supremacy of regular law as opposed to the influence of arbitrary power)
has been seriously challenged, due to the proposition that the rule of law excludes even wide
discretionary authority by the government. The modern government depends on many
discretionary powers granted to the executive by the large numbers of statutes annually passed
by parliament or other legislature. It seems that Dicey’s formulation may be interpreted to
disapprove of the thousands of regulations in our society made through the discretion of
delegated authorities. This first principle also contradicts the fact that, as a matter of necessary
efficiency, many present day statutes allow police the power to detain people for a short period
of time due only to a reasonable suspicion.

ADOPTION OF RULE OF LAW IN INDIA

Constitution of India is framed on the basis of popular notion of Rule of Law, which recognized
two fundamental components of Rule of Law, Supremacy of Law and Equality before law.
Fundamental rights enshrined in part III of the constitution is a restriction on the law making
power of the Indian Parliament. It includes freedom of speech, expression, association,
movement, residence, property, profession and personal liberty. In its broader sense the
Constitution itself prescribes the basic legal system of the country. To guarantee and promote
fundamental rights and freedoms of the citizens and the respect for the principles of the
democratic State based on rule of law.7Applied to the powers of the government, this requires
that every government authority which does some act which would otherwise be a wrong (such
as taking a man’s land), or which infringes a man’s liberty (as by refusing him planning
permission), must be able to justify its action as authorized by law -and in nearly every case this
will mean authorized directly or indirectly by Act of Parliament.13The secondary meaning of
rule of law is that the government should be conducted within a framework of recognized rules
and principles which restrict discretionary powers.The third meaning of rule of law highlights the
independence of the judiciary and the supremacy of courts.

7
Granville Austin, Working a Democratic Constitution - The Indian Experience (New Delhi: Oxford University Press,
1999).

8
As mentioned before Dicey’s theory of rule of law has been adopted and incorporated in the
Indian Constitution. The three arms judiciary, legislature and executive work in accordance with
each other. The public can approach the high courts as well as the Supreme Court in case of
violation of their fundamental rights. If the power with the executive or the legislature is abused
in any sorts, its malafide action can be quashed by the ordinary courts of law. This can be said so
since it becomes an opposition to the due process of law. Rule of law also implies a certain
procedure of law to be followed. Anything out of the purview of the relevant law can be termed
as ultra vires.

No person shall be deprived of his life or personal liberties except according to procedure
established by law or of his property save by authority of law. The government officials and the
government itself is not above the law. In India the concept is that of equality before the law and
equal protection of laws. Any legal wrong committed by any person would be punished in a
similar pattern. The law adjudicated in the ordinary courts of law applies to all the people with
equal force and bidingness. In public service also the doctrine of equality is accepted. The suits
for breach of contract etc against the state government officials, public servants can be filed in
the ordinary courts of law by the public.

In India, the meaning of rule of law has been much expanded. It is regarded as a part of the basic
structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by
Parliament. The ideals of constitution; liberty, equality and fraternity have been enshrined in the
preamble. Constitution makes the supreme law of the land and every law enacted should be in
conformity to it.

JUDGEMENTS ON RULE OF LAW

The Supreme Court in GolakNath v. State of Punjab8 held that Parliament have no power to
amend the Part III of the Constitution so as to take away or abridges the fundamental rights and
thus, at the end the Rule of law was sub served by the Judiciary from abridging away.

But this as not the end. The popular habeas corpus case, ADM Jabalpur v. Shivakant Shukla9 is
one of the most important cases when it comes to rule of law. In this case, the question before the
court was ‘whether there was any rule of law in India apart from Article 21’. This was in context
8
1967 AIR 1643
9
1976 AIR 1207

9
of suspension of enforcement of Articles 14, 21 and 22 during the proclamation of an
emergency. The answer of the majority of the bench was in negative for the question of law.
However Justice H.R. Khanna dissented from the majority opinion and observed that “Even in
absence of Article 21 in the Constitution, the state has got no power to deprive a person of his
life and liberty without the authority of law. Without such sanctity of life and liberty, the
distinction between a lawless society and one governed by laws would cease to have any
meaning.”

The Supreme Court observed in Som Raj v. State of Haryana10 that the absence of arbitrary
power is the primary postulate of Rule of Law upon which the whole constitutional edifice is
dependant. Discretion being exercised without any rule is a concept which is antithesis of the
concept. It is rightly reiterated by the Supreme Court in the case Union of India v. Raghubir
Singh11 that it is not a matter of doubt that a considerable degree that governs the lives of the
people and regulates the State functions flows from the decision of the superior courts.

In Kesavanda Bharti vs. State of Kerala12 the Supreme Court enunciated the rule of law as one of
the most important aspects of the doctrine of basic structure. In Maneka Gandhi v. Union of
India13 - The Supreme Court declared that Article 14 strikes against arbitrariness. In Indira
Gandhi Nehru vs. Raj Narian14 - Article 329-A was inserted in the Constitution under 39th
amendment, which provided certain immunities to the election of office of Prime Minister from
judicial review. The Supreme Court declared Article 329-A as invalid since it abridges the basic
structure of the Constitution.

In the case of Sukhdev v. Bhagatram15 Mathew J. declared that “Whatever be the concept of the
rule of law, whether it be the meaning given by Dicey in his "The Law of the Constitution" or the
definition given by Hayek in his "Road to Serfdom" and "Constitution of liberty" or the
exposition set-forth by Harry Jones in his "The Rule of Law and the Welfare State", there is, as
pointed out by Mathew, J., in his article on "The Welfare State, Rule of Law and Natural Justice"
in "Democracy, Equality and Freedom," "substantial agreement is in juristic thought that the

10
1990 AIR 1176.
11
1989 AIR 1933.
12
(1973) 4 SCC 225
13
1978 AIR 597
14
1975 AIR 1590
15
1975 AIR 1331.

10
great purpose of the rule of law notion is the protection of the individual against arbitrary
exercise of power, wherever it is found". It is indeed unthinkable that in a democracy governed
by the rule of law the executive Government or any of its officers should possess arbitrary power
over the interests of the individual. Every action of the executive Government must be informed
with reason and should be free from arbitrariness. In addition to this in P. Sambamurthy v. State
of Andhra Pradesh16 the SC has declared a provision authorizing the executive to interfere with
tribunal justice as unconstitutional characterizing it as “violative of the rule of law which is
clearly a basic and essential feature of the constitution”

Hence, it is quite evident that the concept of rule of law is gaining importance and attention and
judicial efforts are made to make it stronger.

16
1987 AIR 663

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 CHAPTER 3 – DEVELOPMENT OF 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.

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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 totime 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

13
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

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.

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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.

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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 d’Etat”, 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 officer’s 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

16
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.

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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

18
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. Taking these facts into account some of the jurists are
of the opinion that the doctrine of separation of powers was accepted in the constitution of India
in its entirety. So in Kartar Singh v state of Punjab it was held that,“The legal sovereign powers
has been distributed between the legislative to make laws, executive to implement the laws and
the judiciary to interpret the laws within the limit set by the constitution.”

But one careful reading it can be clearly seen that the doctrine of separation of power has not
been accepted in India in the strict sense. There are no provisions in the constitution regarding
the division of functions of government and their exercise. Only the executive has specific
provisions stating about the powers of the state and union 154(1) and 53(1) respectively. Both
judiciary and the legislature do not have specific provisions in the constitution.

Executive Exercise of:

Some of the action of the executive clearly shows that the executive interferes with the actions of
the other organs.

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 Legislative Powers:

The President has a wide Legislative power, Articles 123 and 356, and iscompetent to make laws
for the state after the legislature has been dissolved.

Such an exercise of legislative function is immune from judicial review.

Judicial Powers:

The president performs judicial functions also, he decides disputes regarding the age of judges of
the Supreme court and High courts, according to articles 124(2-A) and 217(3) respectively
.Parliamentary Exercise of: The parliament also infers with some of the functions of the other
organs of the government.

Executive Powers

The parliament, at times of fixed situations, it delegates the power to make laws to the executive,
this is done in order to reduce the overburden upon the legislature. Such a method of delegating
the power of the legislature to the executive is known as delegated legislation.

Judicial Powers:

Parliament exercises judicial functions also; it can decide the question as to the breach of its
privileges and the parliament also has the powers to punish the offender to such privileges
according to Article 105.

The proceeding as to the impeachment of the President is initiated in the parliament, where one
house acts as the investigator and the other acts as the prosecutor and decides the matter, whether
proved or not, this is purely a judicial function.(Article 61).

Judicial Exercise of :

The judiciary exercises both executive and legislative functions.

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 Executive Powers:

According to the Article 227, The High court has the powers over all the subordinate courts and
tribunals. They also have the power to transfer cases from a lower tribunal to a higher tribunal.

Legislative Powers:

The Supreme Court and the High court have the powers to frame rules regarding their own
procedure for the conduct and disposal of cases according to the Articles 145 and 225.

They also have the powers to invalidate the laws passed by the parliament So from all this we
can draw a conclusion that the Doctrine of Separation of powers has not been adopted in the
strict sense.

In the case of Ram Jawaya v State of Punjab17 it has been held that, “The Indian Constitution has
not indeed recognised the Doctrine of Separation of Powers in its absolute rigidity.”

In the case of Indira Nehru Gandhi v Raj Narain18 Justice Beg observed that, “Separation of
power is a part of the basic structure of the constitution, none of the three organs of the republic
can take over the functions assigned to the others. This scheme of the constitution cannot be
changed even by resorting to Article 36819 of the constitution.”

17
(1955)2 SCR225
18
AIR 1975 SC 2299
19
Power of the parliament to amend the constitution and the procedure thereof.

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 CHAPTER 4: RELATIONSHIP BETWEEN THE RULEOF LAW AND
SEPARATION OF POWER

The rule of law is the opposite of the rule of power. It stands for the supremacy of law over the
supremacy of individual will. But to say this is to speak only in the most general of terms. As in
the case of all abstract political ideals, the requirements of the rule of law are contested. The
separation of powers doctrine is also a complex and contested notion, and the extent to which it
supports the rule of law therefore depends, in part, on how its requirements are understood. This
volume of the Macquarie Law Journal explores the meaning of the rule of law as well as the
extent to which the separation of powers – the principles of dividing and balancing power − can
be used to advance rule of law values.

Dicey, as is well-known, stressed three features of the rule of law: the need to curb the conferral
of discretionary power on government officials in the interests of certainty and predictability; the
ability to seek a remedy in independent courts should the government act illegally; and the
importance of equality before the law.

Dawn Oliver, by contrast, is more pessimistic about the ability of internal scrutiny processes in
government to safeguard rule of law values, at any rate in the United Kingdom. She takes the
view that the rule of law and various other fundamental moral and political principles and values
are implicit in British constitutional arrangements. Yet, as she shows, the current intra-
governmental and parliamentary processes for scrutiny of bills and draft bills in the United
Kingdom have not been effective in preventing the enactment of legislation which is in conflict
with these fundamental values. Oliver concludes that norms such as the rule of law operate most
effectively in ‘the shadow of the law’ and especially where there is the prospect of judicial
invalidation of legislation which conflicts with them.

If law is effectively to restrain power, it is not enough, as Dicey saw, that the exercise of power
should be authorised by clear legal rules. Government officials must also obey the rules which
Parliament has enacted and this can only be ensured if the courts have the jurisdiction to enforce
the legal limits which govern the exercise of executive power. It follows that privative clauses –
provisions which attempt to limit or exclude the ability of individuals to challenge the abuse of
power by government officials in independent courts – are an assault on the rule of law. In

22
Church of Scientology v Woodward Brennan J spoke in just such terms about the role played by
judicial review in securing the rule of law, saying:

Judicial review is neither more nor less than the enforcement of the rule of law of executive
action; it is the means by which executive action is prevented from exceeding the powers and
functions assigned to the executive by law and the interests of the individual are protected
accordingly.20

This aspect of the rule of law – the accountability aspect - is once again supported by the
separation of powers. In this case it is the separation of judicial from executive power which is
engaged. In providing that only the courts can exercise judicial power the doctrine prevents
government officials from having the last word on whether they have acted illegally.21

The separation of judicial power thereby provides for an effective check on the executive branch.
Another key element of the rule of law is the principle that disputes should be and appear to be
decided according to the law and nothing but the law.[3] If judges depart from the law on the
basis of their personal moral and political views, we risk judicial lawlessness. And if the
adjudication of disputes is influenced by external, political pressures, it becomes impossible to
control the exercise of power by the political branches of government. Here, too, there is a
connection between the separation of powers and the rule of law: in this case, the separation of
powers serves the rule of law by insisting that only our elected representatives should make law
and by confining the exercise of the judicial function to a branch of government which – in
virtue of tenure and remuneration protections − is independent of domination or manipulation by
the political branches.

20
Church of Scientology v Woodward (1982) 154 CLR 25, 70.
21
Plaintiff S157/2002 v Commonwealth (2003) 77ALJR 454, 473.
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 CONLUSION & SUGGESTIONS

Although the doctrine of separation of powers advocates the independent role of the three organs
of the government yet as Paton stated, “It is extraordinary difficult to define precisely each
particular power.” Any attempt to demarcate the functions of the three organs could
‘causeserious inefficiency in government’.

As we know the legislature can only legislate and the executive can only punish anyone who
commits a breach of privilege; neither of these two can assume the powers of the other. So this
theory cannot be accepted in its entirety in the administrative law because separation of powers
can only be relative and not absolute. Thus separation of powers is not only practically
impossible but theoretically absurd too.

Some have argued that while functions may be demarcated powers should always remain
supreme. But it is impossible to perform functions without the necessary powers. At one point of
time this theory held great value against the despotism of a king and later of a parliament. Such
despotism does not exist today. The modern-day governments require protection against the
domination of parliament and of civil servants. The separation of powers is too mechanical in
nature to be of any avail against these types of domination. What is required is not separation of
powers but ‘co-ordination’ or ‘articulation’ of powers. The doctrine of separation of powers is
not accepted fully in the constitution of India and one may agree with the observation of
Mukherjee. J. in Ram Jawaya v State of Punjab “The Indian constitution has not indeed
recognize the doctrine of separation of power 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”.

24
 BIBLIOGRAPHY

1. C K Takwani, Lectures on Administrative Law, (5 th Edn.), Eastern Book Company, Lucknow

(2012).

2. D D Basu, Administrative Law, (2 nd Edn.) Prentice-Hall (1986).

3. I P Massey, Administrative Law, (7 th Edn.), Eastern Book Company (2008).

4. MP Jain and SN Jain, Principles of Administrative Law, (6 th Edn), LexisNexis Butterworth

& Wadhwa, Nagpur (2007).

5. S. A. de Smith, Constitutional and Administrative Law, Penguin Books, 1998 (8th Edn.).

6. S P Sathe, Administrative Law, Lexis Nexis, Butterworth & Wadhwa, Nagpur (2010)

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