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Separation of Power

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Lakshay Gera
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17 views

Separation of Power

Uploaded by

Lakshay Gera
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Administrative

Law
Assignment-1
Doctrine of separation of
powers

Made by-
Lakshay Gera
2105150002
The doctrine of separation of powers emphasizeson
mutual exclusiveness of three organs of government
i.e. Legislature, Executive and Judiciary.
According to this doctrine, the legislature cannot
exercise executive or judicial power; the executive
cannot exercise legislative or judicial power, and the
judiciary cannot exercise the other two powers.
Montesquieu formulated this doctrine in his book
“The Spirit of Laws” and stated when the legislative,
executive and judicial powers are vested in same
organ there can be no liberty.

The doctrine aims to guard against tyrannical and


arbitrary powers of the State.
The rationale behind this doctrine is that if all powers
are concentrated in same organ,
there would arise the danger that it may enact
tyrannical laws,
execute them in a despotic manner,
and interpret them in an arbitrary fashion
without external control.
Though, in the light of complex socio-economic
problems in modern welfare state,
It is not possible to apply the separation theory
strictly,
neither, it has become completely redundant and
it emphasizes to develop adequate checks and
balances to prevent administrative arbitrariness.

separation of power measures undue shift of power


toward the executive and recognizes the scope and
extent of a government's executive powers and its
judicial powers.
This doctrine is fundamental to the organization of a
state as it prescribes the appropriate allocation of
powers to different organs.
Position in U.S.A: In U.S.A. the presidential system
of government is based on the theory that there
should be separation between the executive and the
legislature. In U.S.A. legislative powers are vested in
Congress [Article I], executive powers are vested in
President (Article III] and judicial powers are vested
in Supreme Court [Article III]. The strict separation of
power theory was dented when courts introduced
the system of delegated legislation in the U.S.A.

Position in U.K.: U.K. does have a kind of separation


of powers in true sense of term. The three branches
are not formally separated and have significant
overlapping.

Position in India: The doctrine of separation of


powers has no place in strict sense in the
Constitution of India. The functions of different
organs of the Government have been clearly
earmarked, so that one organ of the government
does not usurp the functions of another. Under
Indian Constitution the executive power is vested in
President, legislative power is vested in Parliament
and judicial power is vested in Supreme Court.
In re Delhi Laws Act case, AIR 1951 SC 332
Supreme Court observed that although in the
Constitution of India there is no express separation
of power,
it is clear that a legislature is created by the
Constitution and detailed provisions are made for
making that legislature pass laws.
The Constitution has not recognized the doctrine of
separation of powers in the absolute rigidity but the
functions of the different parts of the government
have been sufficiently differentiated. Our constitution
does not contemplate assumption, by one organ, of
functions that essentially belong to another.

In Ram Jawaya Kapur v of Punjab, AIR 1955 SC


349 Supreme Court held that Constitution does not
recognize separation of powers in its absolute
rigidity.
In Ramkrishna Dalmia v. Justice Tendolkar, AIR
1958 SC 538
Supreme Court held that there is no specific
provision relating to separation of power in our
Constitution but it is implicit in our Constitution.

Further, Supreme Court in Keshvananda Bharti v.


State of Kerala, AIR 1973 SC 1461 observed the
separation of powers between the legislature,
executive and the judiciary is a part of the basic
structure of the Constitution. This structure cannot
be destroyed by any form of amendment.
In Supreme Court Advocates-on-Records
Association v. Union of India, (2016) 5 SCC 1
Supreme Court held the separation of power is
essential feature of the constitution, however, such
separation of power is not a rigid as in U.S.
Constitution. One of the elements of separation of
power is system of 'checks and balance’.

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