Scribd
Upload
3 views

Separation of Power

The document discusses the doctrine of separation of powers, tracing its origins to Aristotle and its formal articulation by Montesquieu in 1748. It explains that while the separation of powers is recognized in India, it is not strictly adhered to, as various functions of the legislative, executive, and judicial branches often overlap. Judicial rulings highlight the importance of maintaining distinct functions among these branches, while contrasting with the more rigid application of the doctrine in the United States.

Uploaded by

manu
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
3 views

Separation of Power

The document discusses the doctrine of separation of powers, tracing its origins to Aristotle and its formal articulation by Montesquieu in 1748. It explains that while the separation of powers is recognized in India, it is not strictly adhered to, as various functions of the legislative, executive, and judicial branches often overlap. Judicial rulings highlight the importance of maintaining distinct functions among these branches, while contrasting with the more rigid application of the doctrine in the United States.

Uploaded by

manu
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
You are on page 1/ 18

Separation of Power

AFIFA AHMAD
ASSISTANT PROFESSOR
Jurist of Separation of Power
 Aristotle: The doctrine of separation of power can be traced back
from him.
 Montesquieu: He was a French jurist. He formulated this doctrine
for the first time in his book ‘Esprit des Lois’ (The Spirit of Laws)
published in the year 1748.
Montesquieu articulated the separation of powers in a systematic
manner, arguing that political liberty is best preserved when the
legislative, executive, and judicial powers are held by separate entities.
 Lord Acton rightly says, “ Every power tends to corrupt an absolute
power tends to corrupt absolutely”.
Separation of Power?
 Separation of power means all the three organs should not
interfere in the working of each other.
 According to the theory of separation of powers, these three
powers and functions of the government must, in a free
democracy, always be kept separate and be exercised by
separate organs of the government.
Wade & Philips
 Same person should not form part of more than one of the
three organs.
 One organ of the government should not interfere with
another.
 One organ should not exercise functions assigned to any
other.
Separation of Power as Dilutory
Doctrine of Administrative Law
 Despite the safeguards it gives against tyranny the modern
day societies find it very difficult to apply its rigidly. In
principle the countries go for separation of powers and
dilution of powers simultaneously.
India- Three Organ

Judiciary Legislature Executive


Power to make Power to make Power to put
judgments on law and change law law into action.
Doctrine of preparation of powers
and Constitution of India
 On a casual glance at the provisions of Constitution of India, one can
see that the doctrine of separation of powers is accepted in India.
 In the case of Golaknath v. State of Punjab (AIR 1967) Subba Rao
C.J observed:
“ The Constitution Three middle instruments of power namely the
Legislature, the executive and the judiciary. It demarcates their
respective powers without overstepping their limits. They should
function within those spheres allotted to them”.
Is it strictly accepted in India?
 It is clear that the doctrine of Separation of powers has not
been accepted in India in its strict sense.
 There is no provision in the Constitution itself regarding the
division or function of the government and the exercise
thereof.
Executive power
 Under article 53(1) and 154(1) the executive power of the Union and the State
is vested in the President anti Governor respectively.
 The President has wide legislative powers. He can issue ordinances, make laws
for a State after the States after the State legislature is dissolved, adopt the laws
or make necessary modifications and exercise of this legislative power is
immune from judicial review.
 They also perform judicial functions as in seen in the cases of pardon,
remission, commutation etc.
Parliament
 Though Parliament exercises legislative function and is competent to
make any law not inconsistent with the provisions of the
Constitution, many legislative functions are delegated to the
executive.
 In certain matters the Parliament exercises judicial functions also. It
can punish a person for its contempt.
 In case of impeachment of the President one house act as a
prosecutor and the other house investigate the charges and decides
whether they were proved or not. The latter is a purely judicial
function.
Judiciary
 Judiciary exercises all judicial powers, at the same time it exercises
certain executive or administrative functions also.
 The High court has supervisory powers of overall subordinate courts
and tribunals and also power to transfer cases.
 The High court and the Supreme Court have legislative powers also,
they frame rules regulating their own procedure for the conduct and
disposal of cases.
Thus the doctrine of separation of powers is not accepted fully in the
constitution of India.
Judicial Rulings
 In Ram Jawaya vs State of Punjab the Supreme Court observed:
“The Indian Constitution has not indeed recognised the doctrine of
Separation of powers in its absolute rigidity but the functions of a
different path 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, functions that essentially belong to another.
 In Indira Gandhi vs Raj Narain when Parliament sought to obliterate
a judicial decision in which election of the Prime minister to the
Parliament had been set aside by passing a Constitutional
amendment, the Supreme Court held that it was not a Constitutional
amendment at all since a judicial decision could not be overturned
by legislative process. In this case, held that the doctrine of
Separation of power is a part of the “basic structure” of the
Constitution.
 In Asif Hameed v. State of Jammu and Kashmir the court
observed that legislature, executive and Judiciary had to
function within their own spheres demarcated under
Constitution. No organ can usurp the functions assigned to
another. The functioning of democracy depends upon the
strength and independence of each of its own.
 This case is pivotal in understanding the Separation of
powers within Indian administrative law and clarifies the
extent to which courts can influence executive decisions
regarding public service selections.
 In administrative process we often see a combination of all
the three functions in a single agency ie., in an
administrative authority but administrative law makes a
distinction in the method of exercise of such functions.
United States of America
 The doctrine of separation of powers has been accepted and strictly
adopted by the founding fathers of the Constitution of the United
States of America.
 The doctrine of separation of powers became a doctrinal barrier to
the development of administrative law in the USA.
 Though in 1787 when the American Constitution was drafted, the
doctrine of separation of powers was adopted, with the growth of
administrative process the rigorous of the doctrine have been
relaxed.

You might also like