TITLE:-A BRIEF STUDY ON APPLICATION OF THE

DOCTRINE OF SEPARATION OF POWER IN INDIA

TABLE OF CONTENT

ACKNOWLEDGEMENT
Chapter 1- SYNOPSIS
A. Statement of the problem
B. Research objectives
C. Research question
D. Research method

Chapter 2 - INTRODUCTION

Chapter 3

A. Montesqueieu’s contribution to the theory of separation of powers

Chaoter-4

Basic principles of the theory of separation of powers

Criticism

Importance of theory of separation of powers

Chapter-5

Separation of powers in the United State of America

Applicability of working of the theory of separation of powers in India

Suggestion and Conclusion

BIBIOGRAPHY

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 CHAPTER-1
SYNOPSIS
Statement of Problem

In this dynamic scenario there are many problem with the separation of power
in India. In this, project I would be dealing with the concept of separation of
power in India. I will also try to find out the different types of problem of
separation of power.

Research objectives

1. To know the separation of power.

2. To know the basic principle of separation of power.
3. To know the importance of separation of power.

Research question

1. What is separation of power?

2. What is the basic principle of separation of power?
3. What are the importance of separation of power?

RESEARCH METHOD

For this project doctrinal methods would be used for the purpose of this project..

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 CHAPTER-2

INTRODUCTION

Government is the agency or the machinery through which the will of the
State is formulated, expressed and realised. Power rests with the government.
“Power corrupts and absolute power corrupts absolutely.” This is applicable not
only to men, but also to institutions. This is true for all times and for all ages.
Concentration of authority degenerates into tyranny, corruption and abuse of
powers. The functions of the State, for all practical purposes are performed by
the government through its three branches--- legislature, executive and
judiciary. All the branches of the government have equal importance and
function. So one should not over ride or control the other. Each branch of the
government should be made independent of the other.

Aristotle in his book “Politics” mentioned three branches of the

government, namely, the deliberative, executive and judiciary. Roman writers
like Ciero and Polubius praised the Republican Constitutions of Rome because
in it they found a balance between the Senate, Consuls and Tribunes. Jean
Bodin, the French publicist was the first modern writer to demand a separation
of powers. He argued that “if the king were both lawmaker and judge, then a
cruel King might give cruel sentence.” John Locke in his book “Two Treatises
on civil government” also distinguished the State powers as legislative,
executive and federation.

According to Locke, the federative power related to the conduct of

foreign affairs. He agreed to combine the federative and executive powers. But
he opposed the concentration of executive and legislative powers in the same
organ. During the Commonwealth period in England, Cromwell separated the
executive and legislative functions, through as the head of the executive he
dismissed the judges high-handedly. The Glorious Revolution deprived the king
of England of the power to dismiss the judges and suspend the law.

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 CHAPTER-3

Montesquieu’s Contribution to the Theory of Separation of

Powers

During the 18th century Louis, the ruler of France enjoyed the absolute
powers of the state. He combined in himself all the powers of the three organs
of the government, i.e. , executive , legislative and judicial. The people had no
liberty under such an oppressive and despotic government. During this period,
Baron de Montesquieu, the French philosopher happened to visit England and
was very much impressed by the liberty that was being enjoyed by the people
there. He came to conclusion that the British people enjoyed liberty due to the
prevalence of the principle of separation of powers. The theory of separation of
powers, however, emerged as a distinct doctrine in the “Espirit De Lois”,i.e. ,
“The Spirit of Laws” of Montesquieu.

In essence, Montesquieu’s theory lays that it was in the nature of

authority to abuse itself and that unless clear limitations were laid down,
arbitrary rule would be inevitable. According to him, moderation in exercise of
government authority was the essential requisite of a good government. In order
to realise such moderation, he felt that, each power should be exercised by a
different organ of government and among the various organs of government
there should be a system of checks and balances so that one organ might not
become all powerful.

In his ‘Spirits of Laws’, Montesquieu wrote,” In every State there are

three kind of powers, the legislative power, the power executing the matters
falling with law of nations, and the power executing the matters which fall
within the civil law. Through the first, the Prince of Magistrate makes the laws
for the time being or for all time, amends or repeals those previously made.
Through the second, he makes war and peace, sends and receives ambassadors,
establishes order and prevents invasions. Through the third, he punishes crimes

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and judges the disputes of private individuals. This last is called the judicial
power, and the second is known as the executive power.”

Montesquieu states that “when the legislative and executive powers are
united in the same persons or in the same body of magistrates there can be no
liberty, because apprehensions may arise, lest the same monarch or separate
should enact tyrannical laws, and execute them in tyrannical manner. Again,
there is no liberty if the judicial power is not separated from the legislative, the
life and liberty of the subject would be exposed to arbitrary control, for the
judge would be then the legislator. Where it joined to the executive power, the
judge might behave with violence and oppression. There would be an end of
everything, were the same man or the body, whether of the nobles or of the
people, to exercise those three powers, that of enacting laws, that of executing
the public resolutions and off trying the cases of individuals.”

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 CHAPTER-4

Basic Principles of the Theory of Separation of Powers

 No concentration of powers.
 Diffusion of powers needed.
 System of checks and balances.
 In short, the theory of the separation of powers merely means that a
different body of persons is to administer reach of the three departments
of governments and that no one of them is to have a controlling power
over either for the others.
 Such separation is necessary for the purpose of preserving the liberty of
the individual and for avoiding tyranny.

CRITICISM
 It is not desirable because if there is complete separation of powers, the
different organs of the government will not be able to work in co-
operation and harmony. As a result, there would be frequently deadlocks
which may bring the governmental machinery to a standstill.
 According to Mill, ”the separation of powers will result in a clash
between the three organs of government, as each one will take interest
only in its own powers”.
 If all branches are made separate and independent of each others, each
branch will try to safeguard its powers and will not protect the powers of
other branches. In such case administrative efficiency cannot be attained.
 The theory of separation of powers makes a mistake in assuming that the
three branches of government are equally powerful and can be
independent of one another.
 The growth of administrative adjudication is another development which
is against the doctrine of separation of powers. The executive is being

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 vested with judicial powers as well as other duties otherwise the officers
do not feel secure while performing their duties.
IMPORTANCE OF THE THEORY OF SEPARATION OF POWERS

 It aims at individual liberty. It is a safeguard against despotism.

 Its basic principle that concentration of powers leads to dictatorship is
true for all time and ages.
 The separation of powers saves the people from the arbitraryrule of the
executive.
 This theory lays down the principle that governments should act
according to certain well established rules or law.
 Each organ acts as a check upon the others.
 It is desirable for maintaining the efficiency in the administration.

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 CHAPTER-5

SEPARATION OF POWERS IN THE UNITED STATES OF

AMERICA
 The American constitution is based on the theory of separation of powers.
 According to article 1 of the constitution of the United States, ”all
legislative powers therein granted shall be vested in a Congress.” The
legislature alone exercises law making power.
 According to article 2 of the constitution of the United States, ”the
executive power shall be vested in a president of the united states. He is
not responsible to the congress.”
 According to article 3 of the constitution of the united states, “the judicial
power shall be vested in the supreme court.” The judiciary is independent
of the executive and the legislative.
 A concrete evidence of this theory is seen in American constitution as the
position of president under the constitution has been secured by providing
fixed tenure of office, the legislature is not subject to any executive
control, and a judge cannot be removed once appointed.
 Congress consists of two houses- Senate and House of Representatives.
Both are directly elected by the people for a fixed period.
 Neither the president nor the congress are responsible to each other.
 President is not empowered to remove a judge after he is appointed on the
post.
 The senate has got no power to choose, control or dismiss the executive
or the judiciary; the executive also cannot dissolve the legislature and
dismiss judges.
APPLICABILITY OF THE THEORY ININDIA
 Despite there being no express provision recognizing the doctrine of
separation of powers in its absolute form, the Constitution does make the

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 provisions for a reasonable separation of functions and powers between
the three organs of Government.
 Since ours is a parliamentary system of governance, though an effort has
been made by the framers of the constitution to keep the organs of the
government separated from each other, but a lot of overlapping and
combination of powers has been given to each organ.
 In India, there are different branches to carry out the different activities of
the government.
 The legislative and executive wings are closely connected with each other
due to this, the executive is responsible to the legislature for its actions
and derives its powers from the legislature.
 The head of the executive is the president, but a closer look shows that he
is only a nominal head and the real power rests with the Prime Minister
and his Cabinet of ministers.
 The judiciary can perform administrative and legislative functions. The
parliament too may perform judicial functions.
 It is important to note that the separation of powers is still an important
guiding principle of the constitution.
 Most noteworthy is our judicial system which is completely independent
from the executive and the legislature.
 The High Courts and Supreme Courts have the power of judicial view
which empowers them to declare any law passed by the parliament
unconstitutional if it so decides. As in regard to the judges, they are
extremely well protected by the Constitution, their conduct is not open to
discussion in the Parliament and their appointment can only be made by
the President in consultation with the Chief Justice of India and the
judges of the Supreme court.
 But it is clear that the Separation of Powers doctrine has not been
implemented in its strictest format in our country nor been given

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Constitutional status but a diluted and modern approach is followed to aid
and guide our parliamentary system of governance.

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 SUGGESION AND CONCLUSION
 In the modern world, the Separation of Powers has come to not only
mean organs such as the Executive, the legislature and the judiciary but
also institutions such as the press and academic institutions.
 Thus, in a modern society, implementation of Separation of Powers
doctrine in its strictest sense, the way Montesquieu envisaged it to be in
his book The Spirit of laws is an extremely difficult task. Even civil
institutions wield a lot of power in all spheres of governance.
 In India, the separation of powers theory has been used as a guiding
philosophy to separate powers as much as possible but not completely, so
that the organs of government are alienated from each other. In our
parliamentary form of governance a lot of cooperation is required and
thus each organ must correspond to the other on some level so as to
function smoothly.
 Hence though the doctrine of separation of powers is a theoretical
concept and may be very difficult to follow completely a compromised
version of it is used in our country.
 For example, judicial review and activism functions of the judiciary is an
important element of our system of justice to keep a check on the
legislature who are new makers of the land , so that they do not exceed
their powers and work within the allowances that the constitution has
made for them.

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 BIBLIOGRAPHY

Myneni S. R. POLITICAL SCIENCE, Allahabad Law Agency, 1559, Outram

Lines Near Kingsway Camp, Delhi-110009

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