INTRODUCTION

“Power is of an encroaching nature.”

--James Madison, Federalist Paper

No.48 [1788]

Although not famed for his views on constitutional law, Terry Pratchett
summed up the driving force behind the doctrine of “Separation of Powers”
very concisely in one of his novels.” People say they want freedom and
equality”, one of his characters opines, “but what they really want is for
tomorrow to be the same as today”. In other words, what society needs is
continuity and predictability in their government.
It is widely accepted that for a political system to be stable, the holders of
power need to be balanced off against each other. One of the reasons widely
cited is that it leads to a more just and humane system of government. This
need not invariably be the case but, as Lord Acton said:
” Power tends to corrupt and absolute power corrupts absolutely”.
By maintaining a balance between political forces, power is prevented from
being concentrated in the hands of people who would be tempted to abuse it1.

The doctrine of Separation of Powers is also known as ‘trias politica’. The

Doctrine is the ancestor to all the constitutions of the world which came into
existence since the days of the “Magna Carta”. Separation of Powers is not
adhered to in Constitutional Laws of nations solely by virtue of its force as
doctrine. But because it provides the structure for a ‘Limited Government’, and
the ‘Power interrelationships’ indispensable to a Free and Independent
Judiciary, it is a basic institutional safeguard of Democracy and Civil Liberty.
Due to such socio-Iegal functions performed by it, which remain indispensable
to constitutionalism, Separation of Powers goes beyond being just a doctrine;
it is a juristic imperative.

Separation of Powers is here discussed as an institutional arrangement or

situation within government. There is a tripartite system -in a particular

1
http://www.ukessays.com/essays/social-policy/separation-power-corrupts.php
government, where the different powers of Legislation, Execution, and
Adjudication are each lodged in a separate Branch of government.
Traditionally, a Tripartite System consists of the Legislative, the Executive, and
the Judicial branches. Each of these branches has a definite legal relationship
to the others. Such relationships are summed up on the principles of equality
and separation. On the principle of Equality, each Branch is the equal of the
others; hence, it may not be controlled by the others, and in turn, it may not
control either or both of them. On the principle of separation, each branch is
separate and distinct from the other branches, and may exercise only the
Power lodged with it but not other Powers. The legislative organ of the state
makes laws, the executive enforces them and the judiciary applies them to the
specific cases arising out of the breach of law.

In order to promote accountability of government, hinder corruption and

protect the fundamental freedoms of citizens from the will of the government
of the day, it is essential to keep separate the power to make laws, from the
power to administer laws, and from the power to hear and determine disputes
according to the law. This separation is designed to protect the people from a
concentration of power, and the ability of individuals or groups to manipulate
government for personal gain and to ignore the will of the people.

But neither of these branches could exist without anomalies. Each branch
while performing its activities tends to interfere in the sphere of working of
another functionary because a strict demarcation of functions is not possible in
their dealings with the general public. Thus, even when acting in ambit of their
own power, overlapping of functions tends to appear amongst these branches.
This will be the head for discussion in my project, simultaneously comparing
the stature of the Doctrine in America, U.K., India, Canada and Australia. We
will also analyse where the doctrine performs well, in states with written or
with Un-written constitution; at the end pointing out the defects in working of
the Doctrine in general.

CONCEPT OF SEPARATION OF POWERS

The Separation of Powers is an important concept in Constitutional Law. The
Separation of Powers is a doctrine and not a legal principle. The rationale
underlying the separation of powers is to prevent the abuse of power. This
doctrine prescribes for appropriate allocation of powers, and the limits of
those powers, to differing institutions. The concept has played a major role in
the formation of various constitutions. The extent to which powers can be and
should be, separate and distinct, was a central feature in formulating, for e.g.,
both the American and French revolutionary constitutions. In any state, three
essential bodies exist: the executive, the legislature and the judiciary. It is the
relationship between these bodies which must be evaluated against the
backdrop of the principle.

The essence of the doctrine is that there should be, ideally, a clear
demarcation of functions between the legislature, executive and judiciary in
order that none should have excessive power and that there should be in place
a system of checks and balance between the institutions. However, as will be
seen, there are significant departures from the pure doctrine under the United
kingdoms’ constitution, and it must be conceded that, while the doctrine is
doctrine is accorded respect, it is by no means absolute2. It is rooted in the
idea that tyrannical government stems from the concentration of control over
all the powers and functions of government in the hands of the same or a few
individuals or narrow political faction. The separation of powers is premised on
the principle that free popular government can best be promoted by dividing
the various powers and functions of government among separate and
relatively independent governmental institutions whose officials would be
selected at staggered intervals and through different procedures by somewhat
different constituencies. In this way, it would minimize the chance that the
same small faction could gain control of them all at the same time3.

Montesquieu in the following words stated the Doctrine of Separation of

Powers:

“There would be an end of everything, were the same man or

same body, whether of the nobles or of the people, to exercise

2
Legal News & Views, sept.2012
3
Jain M.P “Indian Constitutional law” fourth edition, Wadhwa and Wadhwa company
 those three powers, that of enacting laws, that of executing the
public resolutions, and of trying the causes of individuals.”

“Separation of Powers” is a feature more inherent to presidential

systems, whereas “Fusion of Powers” is characteristic of parliamentary
ones. “Mixed Systems” fall somewhere in between, usually near the
midpoint; the most notable example of a mixed system is France’s
(current) Fifth Republic. Fusion of Powers is a feature of parliamentary
democracies, wherein the executive and legislative branches are
intermingled. It is viewed as an opposite of “Separation of Powers”
found in so-called “presidential” democracies. Fusion of Powers exists in
many, if not a majority democracies today, and does so by design.

The concept of Separation of Powers could be better understood by its

historical evolution as dealt with by next heading.

Figure 1. Separation of powers

HISTORICAL EVOLUTION OF THE DOCTRINE

Separation of Powers as we know it today is an institution of modern
constitutions. In the constitutions of the ancient world, notably in Athens and
Rome, separation of powers as we know it today did not exist. There was
distribution of powers, but this did not approximate the institution as known
and practiced today. The reason was that the arrangements in both Athenian
and Roman constitutions were vastly different from the present modern
democratic governments. In these ancient city-states, the government, such as
it was, was a direct democracy. The legislative power was not exercised by a
representative body, but by the citizens themselves organized as a body.
Whether in the Ecclesia of Athens, or in the Comitia Centuriata or Concilium
Plebis of ancient Rome, supreme power was exercised directly by the people.
The electorate was the legislative body and, at the same time, the army. In
Rome, the Comitia exercised Judicial Power over heinous offenses, as
evidenced by the institutions of Quaestores Parricidii, etc., which were
commissions of the Comitia. The Comitia Calata of the patrician Comitia
Curiata exercised civil jurisdiction over the social events affecting the families
of the Patricii, notably marriage, divorce, adoption, and execution of the
Testamentum. In Athens, the Ecclesia exercised criminal jurisdiction. The most
notorious exercise of Judicial Power by this body was the trial and conviction of
the philosopher Socrates for the crimes of impiety and corruption of the youth,
for which he was condemned to drink hemlock.

Of the three branches in the Tripartite System that we know today, the first to
develop to full maturity was the Judiciary. Legislative Power and Executive
Power are basically creations of modern times. In the archaic as well as
primitive societies, the Judiciary had an edge because they administered a Law
that was immutable: Tradition and Custom. The rudimentary level of culture
and technology held the king or his equivalent to the traditional functions of
military leader, religious symbol, and peacemaker.

On the other hand, the binding character of sacred tradition and custom
hindered the growth of Legislative Power. The level of conflict was low and well
within the capacity of Custom and Tradition to remedy. The social equilibrium
hindered change; hence, there was stability and continuity in the Law. There
was therefore simply no need to legislate.

As soon, however, as substantial demarcation develops within the society, in

terms of population, culture and economic position, Custom and Tradition are
unable to hold the society together, or to resolve the resultant differences to
the general satisfaction of all concerned. Profound changes in the law may be
required. This may be done through declared or acknowledged changes
through Legislation. Or adaptation may be effected through various policies,
including Interpretation and Legal Fictions.4

These Legal Fictions and Interpretations evolved in the form of theories which
came from different parts of the globe through now-known scholars. The
Greek philosopher Aristotle wrote that the fairest political system would be
one in which power was shared between the monarchy, the aristocracy, and
the common people. In the 17th century, John Locke put forward a more
modern proposition: that government should be divided between an executive
and a legislature. The role of the executive would be to implement law and
administer the country, while the legislature would create and manage the law
itself. Locke distinguished between what he called:

i) Discontinuous legislative power

ii) Continuous executive power

iii) Federative power

He included within ‘discontinuous legislative power’ the general rule making

power called into action from time to time and not continuously. ‘Continuous
executive power’ included all those powers which we now call executive and
judicial. By ‘federative power’ he meant the power of conducting foreign
affairs

The problem with Locke's system is that there is nothing to prevent one arm
of the government overwhelming the other. Our modern notions of separation
of powers are, in fact, mostly derived from the writings of 18th century French
political theorist, Charles de Montesquieu. Ironically, his concepts of an ideal
political system were drawn, at least in part, from his observations of England.
In reality, the separation of powers he describes has never been implemented
fully in England or, quite likely, anywhere else. However, at the time of
Montesquieu England had just had a civil war, and deposed a despotic
monarch in favour of a representative democracy and courts with constituted
and well-defined powers. In France, in contrast, Monarchs still enjoyed more
or less unlimited power. In his book ‘The Spirit of the Law’ Montesquieu

4
“Separation of Powers as a juristic imperative”, A Lecture on Jurisprudence given by Perfecto V. Fernandez,
Professor of Law, University of the Philippines.
describes a system where power is balanced between an executive, a
legislature, and a judiciary. The balance is a complex one. In Montesquieu's
thinking, the judiciary regulates the way in which the executive applies the law,
which is created by the legislature. The judiciary would be limited by the
legislature, as only the legislature would be empowered to create new law.
The legislature could create law, but had no direct powers to apply it.
Montesquieu's theories had a lot of influence, in particular in the nascent USA.
His model of separation of powers is still the one against which others are
judged. However, although his model was said to be based on the English
constitution, closer inspection reveals that there are serious discrepancies
between Montesquieu's theory and political reality in the UK.
Montesquieu’s theory - Montesquieu in the following words stated the
Doctrine of Separation of Powers :

“When the legislative and executive powers are united in

the same person, or in the same body or magistrates,
there can be no liberty. Again, there is no liberty if the
judicial power is not separates from the legislative and
executive powers. Where it joined with the legislative
power, the life and liberty of the subject would be exposed
to arbitrary control; for the Judge would then be the
legislator. Where it joined with the executive power, the
Judge might behave with violence and oppression. There
would be an end of everything were the same man or the
same body to exercise these three powers2…”

The main object as per Montesquieu in the Doctrine of separation of power is

that there should be government of law rather than having whims and fancies
of the official. Also another most important feature of the above said doctrine
is that there should be independence of judiciary i.e. it should be free from the
other organs of the state and if it is so then justice would be delivered
properly. The judiciary is the scale through which one can measure the actual
development of the state if the judiciary is not independent then it is the first
step towards a tyrannical form of government i.e. power is concentrated in a
single hand and if it is so then there is a cent percent chance of misuse of
power.

Montesquieu’s criticism - Montesquieu studied the English constitution for two

years and after that he came to the conclusion that the stability of the English
Constitution is because of its adherence of the separation of power.
Montesquieu had clearly misconstrued the statement pertaining to the British
constitution and later on he was criticized and in a very sarcastic manner; its
criticism was made and it was stated that:

“Montesquieu saw the foggy England sitting in the

sunny wine yard of Paris and he completely
misconstrued the statement”.

Subsequent writers criticized Montesquieu’s thereby describing it as

misleading, since Great Britain had a very closely connected legislature and
executive, with further links to judiciary (though combined with judicial
independence). But in Montesquieu’s time, the political connection between
Britain’s parliament and the monarch’s ministry was not as close as it later
became. Montesquieu did specify that “the independence of the judiciary has
to be real and not apparent merely, “the judiciary was generally seen as the
most important of powers, independent and unchecked” and also considered
the least dangerous. Some politicians criticize judicial action against them as a
“criminalisation” of their behaviour, but such “criminalisation” maybe seen as
a response to corruption, collusion, or abuse of power by those politicians.

After the end of the war of independence in America by 1787 the founding
fathers of the
American constitution drafted the constitution of America and in that itself
they inserted the Doctrine of separation of power and by this America became
the first nation to implement the Doctrine of separation of power throughout
the world.
The Constituent Assembly of France in 1789 was of the view that “there would
be nothing like a Constitution in the country where the doctrine of separation
of power is not accepted”. In France, where the doctrine was preached with
great force by Montesquieu, it was held by the more moderate parties in the
French Revolution. However the Jacobins, Napoleon I and Napoleon III
discarded the above theory for they believed in the concentration of power.
But it again found its place in the French Constitution of 1871. Later Rousseau
also supported the said theory propounded by Montesquieu.5

Importance of the Doctrine

“The doctrine of the separation of powers was adopted . .

. not to promote efficiency but to preclude the exercise of
arbitrary power.”

-Justice Louis Brandeis,

Myers v. US 1926

Even though the doctrine of separation of powers cannot be applied

absolutely, it retains considerable value. The need for the doctrine is shown in
following contentions in its favour:
 In the first place, it emphasises the need for a State to have strong
independent institutions in order to check arbitrary rule by the
Executive. This is particularly important in a country which does not have
a long history of democratic rule.
 Secondly, the doctrine provides a yardstick against which constitutional
proposals can be assessed in order to determine whether or not there
will be adequate checks and balances within the governmental system
to ensure that individual rights are protected.

 The doctrine often determines how good a State’s Constitution is.

Although the doctrine is never possibly applied in its complete sense but
the doctrine in its essence prevents the monarchy of any of the branches

5
“Critical Analysis of the Doctrine of Separation of Powers” by Siddarth Sinha and Yash Kothari, Institute of
Law, Nirma University.
 of the Government. Therefore, it is fair to say that constitutions which
completely ignore the doctrine are usually bad ones one of the branches
of government will be found to overshadow the others or liable to do so.
But it is agreed, constitutions in which the doctrine is observed are not
necessarily good ones.
If the doctrine is observed so strictly that the different branches do not co-
operate with each other, there may be governmental gridlock. And the
doctrine has nothing to say about the nature of the powers that can be
exercised by each of the branches within its own sphere.
If, for example, all the powers of the Executive are vested in one individual and
there are no limits on his or her power, then the State will be a dictatorship or
nearly so; and if the Legislature, though completely independent, is not elected
by universal suffrage, then the State will be undemocratic; and if judges,
though completely independent and irremovable from office, are ignorant and
corrupt, then there will be no rule of law.
So the doctrine of separation of powers has its limits in determining whether
or not a State is well governed. It is only one of several tests to be applied.

Limitations on the Doctrine of Separation of Powers

There is probably no country in the world in which the doctrine of separation
of powers is applied strictly and absolutely. There are not always clear dividing
lines between administrative, legislative and judicial functions. Jurists have
tried their best trying to define those terms precisely and in a modern State
there must be a great deal of co-operation and interaction between the
Executive and the Legislature, in particular, if the States business is to be
efficiently conducted. In modern countries, therefore, there is always some
overlapping of functions.
For example: Legislation has become so far-reaching and complex that
Parliament cannot enact all of it. Acts of Parliament must leave details to be
filled in by regulations made by other authorities, usually executive and
ministers. Hence the Executive branch must be given some law-making
powers.
The role of government has expanded so greatly that many decisions which
affect people’s lives must be made quickly, and some of these decisions
require specialised knowledge which is not possessed by judges or magistrates.
Many of these decisions are made by administrative tribunals established by
and answerable to Ministers. Hence the Executive branch is increasingly given
judicial powers. This is not necessarily undesirable so long as the tribunal obey
the basic standards of fairness laid down by the law and so long as the court is
able to review their decisions.
It is generally recognised that in a legal system such as ours, judges do not just
interpret the law. They develop and adapt the law to take account of changing
circumstances, and in that way they actually make law. Hence the judicial
branch has some law-making or legislative powers, but this power should not
go beyond refining and developing existing law.
In some countries the Head of State is elected by Parliament, not by the
people. This is usually the case where the Head of State is non-executive, but
for example in South Africa the executive President is elected by the National
Assembly. While this violates the strict doctrine of separation of powers it has
the advantage of ensuring that the Executive does not get too powerful and is
ultimately answerable to Parliament.
Few modern constitutions provide for the direct election of judges and
magistrates. They are usually appointed, subject to safeguards to ensure their
independence, by the Executive or the Legislative branch, or by both branches.
Because there cannot be a complete separation between the different
branches of government, the doctrine of separation of powers can best be
defined as a governmental system of separated institutions sharing power
fairly between them. Relative powers of each branch should be balanced.
Delegated legislation provides another example of the practical limits of the
doctrine of separation of powers. In absolute terms, the doctrine prescribes
that the Executive governs but must not have a capacity to make new laws
since this is the domain of the legislature. In its pure form then, it is breached
when Parliament imparts a legislative power to the Executive.
Figure 2. Separation of Powers with shared competence.

The principle of Checks and Balances

‘Checks and balances’ is that principle of government under which separate
branches are empowered to prevent actions by other branches and are
induced to share power. Checks and balances are applied primarily in
constitutional governments. They are of fundamental importance in tripartite
governments, which separate powers among legislative, executive, and judicial
branches.
The term was coined by Montesquieu during the period of Enlightenment. The
principle is an outgrowth of the classical idea of separation of powers. The first
national system of checks and balances was outlined by the United States
Constitution in 1789. The system of checks and balances has two components.
First, the right to check and Second is the means to actively balance out
imbalances. Checking requires access to information and the right to question.
Balancing requires a mechanism of control to prevent the branches from
overstepping their constitutional limits of power. Difficulties arise in states
where the branches can block each other to the extent of bringing the whole
government to a standstill.
A government might be said to have an effective system of checks and
balances if no one branch of government holds total power and each branch
can be overridden by another. The system of checks and balances has two
components - The right to ‘check’ and the means to actively ‘balance’ out
imbalances. Checking requires access to information and the right to question.
Balancing requires a mechanism of control to prevent the branches from
overstepping their constitutional limits of power. Difficulties arise in states
where the branches can block each other to the extent of bringing the whole
government to a standstill.
In governments having three branches, namely Executive, Legislative and
judiciary have similar pattern of checks and balances with suitable
modifications. The most applied pattern for a three branch government is as
follows:

(i) The first of the three, the Executive branch - executes the laws and
policies of the country. It carries out construction and developmental
functions of the government, gives orders to the police and military,
collects taxes, and basically sees that the laws of the land are
enforced. In many countries the executive, either a prime minister or
a president, can also appoint judges and cabinet members, and can
pardon citizens. While against the principles of strict separation, in
some countries the executive might also approve the bills of the
legislature into law, and in some nations also retains the right
of veto or suspension.
(ii) The second, the legislative branch writes the laws of the country
(legislation). In democracies, the legislative branch is the branch that
is most commonly voted into power directly. Often it also has the
authority to impeach or remove from office members of the
executive or judicial branch from office or force elections. It also
confirms or denies executive and judicial appointees and can override
vetoes. In many countries, members of the executive (including the
cabinet) are also selected directly from the legislature.
(iii) The third and most important of all, the judicial branch checks if the
laws passed by the legislative branch are actually being obeyed
properly, which hopefully leads to justice. In many jurisdictions, the
judiciary can also throw out laws it deems unconstitutional (in some
countries, this is reserved for the highest courts only). The judiciary
can declare acts of the executive unconstitutional or illegal. In some
countries, the judiciary is consulted before a law is passed, to prevent
laws from being thrown out in the first place. Members of the
judiciary are often (in principle) appointed for fixed periods or even
for life, to prevent bias.
 In this way the different powers of government are isolated from each
other so that no branch has total power over all the functions of
government. An attack on or abuse of power by individuals of a single
branch will not lead to tyranny or the fall of the entire government.6

Checks by other independent bodies - The function of keeping ‘Checks’ in a

country is performed foremost by its Judiciary, but in some are also
performed by following independent bodies:
(i) Government Agencies which are theoretically attached to the
Executive branch, but independent from the political pressures. Such
bodies are generally watchdogs in nature of CAG, ICI, TRAI, CVC etc in
reference to India. Ombudsman is a well-known form of watchdog,
existing in some countries.
(ii) An Independent Press acts as a watchdog as Lord Denning in his
famous book Road to Justice, observed that press is the watchdog to
see that every trial is conducted fairly, openly and above board. But
he also said that a watchdog without limitations may break loose and
create havoc. Therefore, it is imperative for the Law of the Land to lay
restrictions over the media and press of the nation.

The function of Balances on the other hand is performed mainly by the

Judiciary as it defines the limitation of the powers of every authority as per the
law of the land. It is the branch of Government which interprets the
Constitution and decides the validity and constitutionality of every Act of the
three branches. Some amount of balance is also kept by establishment of
quasi-judicial authorities in the Executive Branch and tribunalisation for
different purposes.

6
www.dkosopedia.com, visited on 2012-11-25.
Figure 3-Checks and balances

Separation of Powers Doctrine in different Countries

“To become truly great, one has to stand with people, not
above them.” -- Charles de Montesquieu

Montesquieu’s Doctrine as discussed, is excepted by all scholars as necessary

for a better Nation, but it has never been applied in its strict notion in any
nation as of yet. Every nation has its own version of the Doctrine running in its
Constitution or what we call the Law of the Land. In this project we’ll be taking
up five prominent nations in brief:

I. America- which has the best application of the Doctrine.

II. England – which was the ideal for Montesquieu.
III. India – which adopts the Doctrine as its basic structure.
IV. Australia – adopts the doctrine in America’s version.
V. Canada – retains the British system.

These nations adopt the Doctrine in very distinct versions and these will be
evaluated here at a very basic level. At the end thereby, comparing which
nation has adopted the Doctrine in the most impressive manner evaluating all
aspects.

AMERICA – Separation of Powers

The idea of separation of powers developed during the period known as the
European Enlightenment. The Enlightenment began in the seventeenth
century and lasted until shortly before the beginning of the American
Revolution. Enlightenment thinkers identified three main powers that were
inherent in government:

(i) Legislative power: the power to make law.

(ii) Executive power: the power to enforce law.
(iii) Judicial power: the power to interpret the law.

The writings of Enlightenment thinkers were well-known to the framers of the

United States Constitution. The framers had the advantage of a political “blank
slate” when they wrote the Constitution. Unlike the nations of Europe, the new
United States had no centuries-old monarchy or aristocracy to make claims on
government power.7

The doctrine of Separation of Powers forms the foundation on which the

whole structure of the Constitution is based. In the first three articles of the
Constitution, the framers defined the three branches of government that
continue to share power in the United States government today. It has been
accepted and strictly adopted in U.S.A. Article I of which Section 1 vests all
legislative powers in the Congress. Article II, Section 1 vest all executive powers
in the President and Article III, Section 1 vests all judicial powers in the
Supreme Court.

Article I: Legislative Power – Congress

Article I places legislative power in the United States Congress. Congress is

made up of two houses: the House of Representatives and the Senate.

7
“Dialogue on Separation of Powers – Single Edition” 2006 publication of American Bar Association.
Representatives tend to be linked more closely to the interests of the local
districts they represent. Senators represent the interests of the entire state.
Consent of both the houses is must to pass a law.

The Constitution gives Congress power over the government’s budget,

including powers to raise taxes, borrow money, and spend money. It also gives
Congress the power to declare war and to raise and support military forces; to
regulate immigration, the mail, patents and copyrights; and to regulate
commerce between the states and between the United States and other
countries. Finally, Congress has the power to establish federal courts below the
United States Supreme Court. The Constitution also provides that Congress has
the power to pass laws that are “necessary and proper” to give effect to its
powers.

Limitations on the Powers of Legislature - Congress’s power is limited in

several ways. These limits are part of the system of “checks and balances” that
the framers wrote into the Constitution. The President is able to check
Congress’s power by exercising the presidential veto. If the President vetoes a
proposed law (called a bill), that bill will not become law unless two-thirds of
the members of both the House and the Senate agree to override the
President’s veto. The Constitution also created an independent judiciary,
headed by the U.S. Supreme Court. The judiciary has the power to hear all
“cases and controversies” arising under the Constitution. The federal judiciary
has used this power to declare laws enacted by Congress unconstitutional. The
federal courts will refuse to recognize a law that has been declared
unconstitutional.

“The doctrine of the separation of powers was adopted . .

. not to promote efficiency but to preclude the exercise of
arbitrary power.”

--Justice Louis Brandeis, Myers v. United States (1926)

Under the non-delegation doctrine, Congress may not delegate its lawmaking
responsibilities to any other agency. In this vein, the Supreme Court held in the
1998 case Clinton v. City of New York that Congress could not delegate a "line-
item veto" to the President, by which he was empowered to selectively nullify
certain provisions of a bill before signing it.

The Constitution Article I, Section 8; says to give all the power to Congress.
Congress has the exclusive power to legislate, to make laws and in addition to
the enumerated powers it has all other powers vested in the government by
the Constitution. Where Congress does not make great and sweeping
delegations of its authority, the Supreme Court has been less stringent. One of
the earliest cases involving the exact limits of non-delegation was Wayman v.
Southard (1825). Congress had delegated to the courts the power to prescribe
judicial procedure; it was contended that Congress had thereby
unconstitutionally clothed the judiciary with legislative powers.8

Article II: Executive Power – The President

Article II defines the powers of the executive branch, headed by the President.
The executive powers of the President include oversight of the federal
agencies that implement laws passed by Congress (today, those agencies
employ more than 4 million people). The President is commander in chief of
the nation’s armed forces. He has the power, subject to the advice and consent
of the Senate, to make treaties, nominate judges to the federal judiciary, and
appoint officers of the government. The President also has the power to
pardon individuals convicted of federal crimes. And he is charged to “take care
that the laws be faithfully executed.”

Article II says that the president becomes the Commander in Chief of the Army
and Navy, Militia of several states when called into service, has power to make
treaties and appointments to office that is "...with the Advice and Consent of
the Senate" and to receive Ambassadors and Public Ministers, and "...take care
that the laws be faithfully executed" (Section 3.) By using these words,
the Constitution does not require the president to personally enforce the law;
rather, officers subordinate to the president may perform such duties.

8
“Separation of Powers in India and USA”, Prachi Shah, published on December 29 2010.
www.legalservicesindia.com
Limitations on the Powers of Executive - Checks and balances on the
executive’s power include a number of provisions that give Congress and the
federal judiciary oversight of executive actions. For example, the House of
Representatives can indict the President on charges of impeachment (defined
in the Constitution as “bribery, treason, or other high crimes or
misdemeanours”). The Senate then tries the President for impeachment and
can remove him from office if he is found guilty. The Senate also has the power
to reject treaties negotiated by the President and to reject his nominees to the
federal judiciary and other government offices. Finally, the federal judiciary has
the power to declare executive actions unconstitutional if those actions are
challenged in court.

The president's responsibility is to execute whatever instructions he is given by

the Congress. Congress often writes legislation to restrain executive officials to
the performance of their duties, as authorized by the laws Congress passes. In
INS v. Chadha (1983), the Supreme Court decided that “The prescription for
legislative action in Article I, ‘Section 1—requiring all legislative powers to be
vested in a Congress consisting of a Senate and a House of Representatives—
and Section 7—requiring every bill passed by the House and Senate, before
becoming law, to be presented to the president, and, if he disapproves, to be
re-passed by two-thirds of the Senate and House’—represents the Framers'
decision that the legislative power of the Federal Government be exercised in
accord with a single, finely wrought and exhaustively considered procedure.
This procedure is an integral part of the constitutional design for the
separation of powers”.

Further rulings clarified the case; even both Houses acting together cannot
override Executive veto’s without a 2/3 majority. Legislation may always
prescribe regulations governing executive officers.

This shows that even in a democratic presidential government, the checks and
balances on the Executive power is not dispensed with.
Article III: Judicial Power – The Supreme Court and Federal Judiciary Article III
of the Constitution establishes a Supreme Court of the United States and “such
inferior courts as the Congress may from time to time ordain and establish.”
The judges must be appointed by the president with the advice and consent of
the Senate, hold office for life and receive compensations that may not be
diminished during their continuance in office. If a court's judges do not have
such attributes, the court may not exercise the judicial power of the United
States. Courts exercising the judicial power are called "constitutional courts."
Congress may establish "legislative courts," which do not take the form of
judicial agencies or commissions, whose members do not have the same
security of tenure or compensation as the constitutional court judges.
Legislative courts may not exercise the judicial power of the United States. In
Murray's Lessee v. Hoboken Land & Improvement Co.(1856), the Supreme
Court held that a legislative court may not decide "a suit at the common law,
or in equity, or admiralty," as such a suit is inherently judicial. Legislative courts
may only adjudicate "public rights.

Today, those “inferior courts” include district courts throughout the United
States, in which most federal cases are tried; circuit courts of appeal, which
review the decisions of the district courts; and the Supreme Court, which has
the final word within the federal judiciary on questions of federal law and the
Constitution. The Constitution protects the judiciary’s independence from
Congress and the President by providing that federal judges are secure in their
positions “during good behaviour.” It also provides that their salaries cannot
be diminished during their time in office. It gives the judiciary the power to
hear all “cases and controversies” arising under the Constitution, federal law,
and treaties with other nations. It also gives the federal judiciary power over
other specialized cases, such as controversies between two or more states.

Limitations on the powers of Judiciary - Both the Congress and the President
have powers that serve to check and balance the power of the judiciary.
Although it cannot reduce the salary of a federal judge, Congress does have
control over the judiciary’s overall budget. Congress can also act to amend the
Constitution if it disagrees with the Supreme Court’s interpretation of the
document. This is a difficult process, requiring a two-thirds majority in both
houses of Congress and the approval of three-fourths of the states.
Nonetheless, it has been used several times in U.S. history to invalidate a
Supreme Court decision. This happened most recently in 1971 when the
Twenty-Sixth Amendment gave the right to vote to all citizens age 18 or older.
Finally, Congress has the power to impeach and try federal judges for
misconduct in office.

The President’s power to nominate all federal judges gives the executive
branch control over which individuals are named to the federal courts. This
power is shared with the Senate, which has the constitutional right of advice
and consent in the nomination process. A majority of the Senate must consent
to the President’s judicial nominations. There are additional checks on the
judiciary’s power.

Judges can only decide the cases that are brought to them. They cannot
declare a law or government action unconstitutional unless they are asked to
do so by a party affected by the law or action. Moreover, the appellate review
process in the federal judicial system ensures that virtually all decisions of
individual judges are subject to review by other judges. Even at the Supreme
Court, a justice must convince a majority of his or her colleagues to agree to a
decision.

Even though of above all, Separation of Powers is not accepted in America in

its strict sense, only it has attracted the makers of most modern Constitution,
especially during 19th Century.

A leading case: Marbury v. Madison 5 U.S. 137 (1803)

This is a landmark case in United States law. It formed the basis for the
exercise of judicial review in the United States under Article III of
the Constitution. This case resulted from a petition to the Supreme Court by
William Marbury, who had been appointed by President John Adams as Justice
of the Peace in the District of Columbia but whose commission was not
subsequently delivered. Marbury petitioned the Supreme Court to force
Secretary of State James Madison to deliver the documents, but the court,
with John Marshall as Chief Justice, denied Marbury's petition, holding that the
part of the statute upon which he based his claim, the Judiciary Act of 1789,
was unconstitutional.

This was the first time the Supreme Court declared something
"unconstitutional", and established the concept of judicial review in the U.S.
(the idea that courts may oversee and nullify the actions of another branch of
government). The landmark decision helped define the "checks and balances"
of the American form of government.

Separation of powers has again become a current issue of the controversy

concerning debates about judicial independence and political efforts to
increase the accountability of judges for the quality of their work, avoiding
conflicts of interest, and charges that some judges allegedly disregard
procedural rules, statutes, and higher court precedents. Where it is said on one
side of this debate that separation of powers means that powers are shared
among different branches; no one branch may act unilaterally on issues, but
must obtain some form of agreement across branches. That is, it is argued that
"checks and balances" apply to the Judicial branch as well as to the other
branches.

It is said on the other side of this debate that separation of powers means that
the Judiciary is independent and untouchable within the Judiciaries' sphere. In
this view, separation of powers means that the Judiciary alone holds all powers
relative to the Judicial function, and that the Legislative and Executive
branches may not interfere in any aspect of the judicial branch.
 Figure 4 – Separation of Powers in America

United Kingdom – Separation of Powers

The separation of power is an integral part of American Politics but is less clear
in British Politics primarily as, the American model, is guaranteed in their
Constitution while the British Constitution is uncodified and therefore roles
have merged between parts of government.

In the United States and other presidential system, a strict separation is often
a fundamental constitutional principle. In the United Kingdom and other
common law jurisdictions, however, the theory of separation has enjoyed
much less prominence. In the UK, the major offices and institutions have
evolved to achieve balance between the Crown (and more recently the
Government) and Parliament. The system resembles a balance of powers more
than a formal separation of the three branches, or what Walter Bagehot called
a “fusion of powers” in The English Constitution.9

Britain's concept of separation of powers that Parliament, executive and courts

each have their own perimeters and each should exercise their powers

9
“The English Constitution” is a book by Walter Bagehot published by Cornell University Press, 1867
accordingly. Monarchy used to influence over government but now it is like a
symbolic for government however it is sovereign. According to Montesquieu
vision, the separation of powers is an idea where checks and balances works
like you running after someone in a circle and they running after you. One
person should not perform his duties in three organs of government at a time.
Each organ of government should not interfere with the other organ e.g.
ministers should not have legislative powers.

Executive Power - It is the branch of a state mechanism which formulates and

implements the policy to run the country which becomes the part and parcel
of the separations of power. It uniquely deals with the formulation of policies,
plans, distraction, rules, regulation in relation to overall government spending
like finance, accounts, budget, education, foreign policies in international
affairs, setting up trade linkage with other foreign countries of the world. It
comprises of Member of Parliament, House of Commons, and selection criteria
of House of Lords. The Executive department focuses its action plan relevant to
the affairs of the parliament. The role remains to implement government
policies.

Legislative Power - This department is charged with the responsibility of

executing legislation wherein the UK legislature, it is known as ‘Parliament'
which comprises of three elements such as the Queen, the House of Lords and
the House of Commons. The members of the House of Commons are elected
on the basis of selection criteria as reflected in parliamentary voting system
virtually. In the UK, new law is enacted when the Bill has been approved by the
House of Commons and House of Lords and thereafter has received the Royal
assent. However, under the Parliaments Act of 1911 and 1949 legislation
maybe enacted even though it has been rejected by the House of Lords
because House of Lords only can delay it up to twelve months. The
interpretation of statutes is a vital part of the law-making process, because
after such interpretation that is known whether the intentions of those who
framed the law have been carried into effect. During this procedure the judges
must not challenge the political authority of the legislature to decide what laws
should be made.
Judiciary - This branch of state is responsible for adjudication of deputies and
development of Common Law. This department relates to Legislative and other
to set up a smooth administration ideally. The primary doctrine of separation
of power has been promulgated by the Legislation department which
authorizes others to be in operative in case of power authentication as well
power allocation.

Although the functioning of these three is so intermingled that it is difficult to

state powers of any one separate from others, but it is attempted here to
differentiate the functions of the three:

(i) Separation of Legislative from Executive - the executive and

legislature are closely entwined. The Prime Minister and a majority of
his or her ministers are Members of Parliament and sit in the House
of Commons. The executive is therefore present at the heart of
Parliament. The UK’s integration of executive and legislature is said
to provide stability and efficiency in the operation of government. It
has been described as “a system that intentionally promotes
efficiency over abstract concerns about tyranny”.10 For example, the
Prime Minister is usually both head of the executive branch and
leader of the majority party in the legislature, which gives the
executive branch much more freedom of action than a president
usually enjoys in a presidential system of government.

Additionally, Parliament may delegate law-making powers to the

Government through powers to draft secondary or delegated
legislation. This can liberate Parliament from the need to scrutinise
small technical details, while maintaining the safeguard of
Parliamentary approval.

In this way, in the UK legislature and executive are far from separate
powers. On the other hand, the executive presence in Parliament
may actually facilitate scrutiny provided that the necessary
procedures are in place. For example, Question Time can be a

10
“ Comparative Constitutional Law”, Cheltenham: Edward Elgar, 2011, p 248
 powerful procedure for holding the executive to account, throwing
ministers straight into the lion’s den of the legislature.

The former Prime Minister, Gordon Brown, set out some of the
arguments for the efficiency of a mixed system:

“My hon. Friend is proposing the American constitution for

Britain. He knows the deadlock that often happens with the
American constitution when Congress, the Senate and the
President cannot agree on what needs to be done. If he looks
back to what has happened over the past few months, he will
see that we were able to persuade Parliament to put our
banking reforms through and were able to finance our banks
so that we could rescue them, whereas it took the Americans
weeks and months to get those provisions through their
legislature as a result of the issues that arise from the
separation of powers.”11

Where a government has a large majority of seats in the House of

Commons, the crucial issue is whether the government can dominate
Parliament and ensure that its proposed legislation is enacted, or
whether there are sufficient procedures in place to ensure that
proposals are sufficiently scrutinised and either endorsed or rejected
by Parliament.

In order to prevent the executive from controlling Parliament the

House of Commons (Disqualification) Act 1975 created limits on the
number of salaried ministers who sit in the Commons. Additionally,
the legislative branch of government retains the formal power to
dismiss executive officers from office. The convention of ministerial
responsibility establishes the accountability of government to
Parliament.

One of the most important aspects of the executive’s control over

the legislature is the allocation of time for debates. The Government
usually has almost complete control over the agenda of the

11
HC Deb 10 June 2009 : Column 808
 legislature. The Backbench Business Committee was created in 2010
as a way of granting the legislature more operational independence
from the executive. The Wright Committee believed that the
Backbench Business Committee would give MPs more control and
ownership of the Parliamentary agenda, make debates more
relevant for the public and strengthen the scrutiny role of Select
Committees, which would be able to apply for time on the floor of
the House through the Backbench Business Committee.12

(ii) Legislature and Judiciary - In UK, judges are prohibited from standing
for election to Parliament under the House of Commons
(Disqualification) Act 1975. Judges are expected to interpret
legislation in line with the intention of Parliament and are also
responsible for development of Common Law (judge-made Law).

Judges in the higher courts have life tenure, which protects their
independence, and a resolution of both Houses is needed to remove
a High Court judge from office, while judges at the lower levels can
only be removed after disciplinary proceedings13. Judges are also
protected by immunity from legal action in relation to their judicial
functions and absolute privilege in relation to court proceedings.

Constitutionally, judges are subordinate to Parliament and may not

challenge the validity of Acts of Parliament. However, there remains
some leeway for judges to interpret statutes and this raises the
question of whether the judges are able to “make law”.

There is an element of judicial law-making in the evolution of

common law14. In Magor and St. Mellons Rural District Council v
Newport Corporation (1952) the House of Lords rejected the

12
House of Commons Reform Committee, First Report of Session 2008–09, Rebuilding the House, HC 1117,
November 2009, section 181
13
Lord Phillips of Worth Maltravers, ‘Judicial independence and accountability: a view from the Supreme
Court’, Gustave Tuck Lecture, 8 February 2011, pp 6–7
14 Barnett, Hilaire, “Constitutional and Administrative Law”.
 approach of Lord Denning who had stated that, where gaps were
apparent in legislation, the Courts should fill those gaps. Lord Simond
commented that this amounted to a “naked usurpation of the
legislative function under the guise of interpretation”.15 Later,
however, in his lecture, The Judge as Lawmaker, Lord Reid said that
while it was once “thought almost indecent” to suggest that judges
make law, the notions that judges only declare the law was
outdated.16 Lord Scarman argued a middle course, suggesting that
“the objective of judges is the formulation of principles; policy is the
prerogative of Parliament”.17

Parliamentary privilege - Article 9 of the Bill of Rights 1689 set out

the principle of privilege of Parliament: freedom of speech and
debate. According to Lord Neuberger, Master of the Rolls, it is “an
absolute privilege and is of the highest constitutional importance”.
Any attempt by the courts to contravene Parliamentary privilege
would be unconstitutional. No court order could restrict or prohibit
Parliamentary debate or proceedings.

On the other side of the coin, there is a convention that Members of

Parliament will not criticise judicial decisions. This is complemented
by the sub judice rule that guards against Parliamentary interference
in cases currently before the courts.

Sub judice - The sub judice rule is intended to defend the rule of law
and citizens’ right to fair trial. Where an issue is awaiting
determination by the courts, that issue should not be discussed in
the House in any motion, debate or question in case that should
affect decisions in court.
However, the sub judice rules are not absolute, the Chair of
proceedings of the House of Commons enjoys the discretion to

15
Gwyn, W. B. “The meaning of the separation of power” (The Hague: Martinus Nijhoff, 1965), p 9
16
Lord Reid, ‘The Judge as Lawmaker’ (1972) 12 Journal of the Society of Public Teachers of Law 22
17
McLoughlin v O'Brian [1983] 1 AC 410
 permit such matters to be discussed. Moreover, sub judice does not
affect the right of Parliament to legislate on any matter.

The 1999 Joint Committee on Parliamentary Privilege explained that

sub judice rules are intended “to strike a balance between two sets
of principles. On the one hand, the rights of parties in legal
proceedings should not be prejudiced by discussion of their case in
Parliament, and Parliament should not prevent the courts from
exercising their functions. On the other hand, Parliament has a
constitutional right to discuss any matter it pleases”. It went on to
explain that the rules strike the balance between Parliament’s
constitutional duty and role and the constitutional role of the
courts.18

(iii) Executive and Judiciary - The judicial scrutiny function with regard to
the executive is to ensure that any delegated legislation is consistent
with the scope of power granted by Parliament and to ensure the
legality of government action and the actions of other public bodies.
On the application of an individual, judicial review is a procedure
through which the courts may question lawfulness of actions by
public bodies. This requires judges to be independent of government
and Parliamentary influence.

The judges have traditionally exercised self-restraint or “deference”

in the areas of power that they regard themselves as competent to
review. Some uses of the royal prerogative, for example, involve
issues of “high policy”, such as the appointment of ministers, the
allocation of financial resources, national security, signing of treaties
and defence matters and judges would not usually interfere in these
matters.

Recently, in A v Secretary of State for Home Department19,

concerning the detention without charge of suspected international

18
Master of the Rolls, Report of the Committee on Super-Injunctions: super-Injunctions, anonymised injunctions
and open justice, section 5.3
19
(2004) UKHL 56
 terrorists in Belmarsh prison, the Attorney General argued in 2004
that “these were matters of a political character calling for an
exercise of political and not judicial judgment” and that “it was not
for the courts to usurp authority properly belonging elsewhere”.
However, Lord Bingham, who gave the leading judgement, rejected
this argument, concluding that “the function of independent judges
charged to interpret and apply the law is universally recognised as a
cardinal function of the modern democratic state” and that the
Attorney General was “wrong to stigmatise judicial decision-making
as in some way undemocratic”.20

Coming to the recent modifications in the Separation of Powers Model of UK,

we will now discuss the recently passed Constitutional Reforms Act of 2005
which provides latest reforms to strengthen these checks and balances and
also to stop the misuse or abuse of powers. It also helps determine better
powers of separation in United Kingdom. It is an Act to make provision for
modifying the office of Lord Chancellor, and to make provision relating to the
functions of that office. As a result Lord Chancellor`s role changed dramatically
and now he can be from either Houses of Commons or Lords. And judicial
independence is now enshrined for the first time.

The other key reforms are:

(i) a duty on ministers to uphold the independence of judiciary;

introduction of Lord Chief Justice;
(ii) introduction of new independent Supreme Court with its own
separate appointment system, budget and own building as well and it
abolishes the appellate jurisdiction of the House of Lords(law lords).
From late 2009 onwards, the Appellate Committee of the House of
Lords will be transferred to a Supreme Court, consisting of twelve
‘Justices of the Supreme Court'.
(iii) When the court is first established there will be the same twelve
judges comprising the above Appellate Committee (the Law Lords).

20
Ibid.
(iv) Until such transfer of functions and personnel has been affected,
judges of the Supreme Court will not be able to sit or vote in the
House of Lords and also membership from the House of Commons.
(v) The monarch will make appointments to the Supreme Court advised
by the Prime minister. A selection process will take place prior to
submitting nomination for royal approval, the selection process will
be taken by an ad hoc Selection Commission of five members. Lord
Chief Justice and other senior judicial figures will be included in the
commission.

The Constitutional Reform Act 2005 was the reason why the practical and
legal operation of the doctrine of separation of powers was given clarity
and effect. The primary purpose of the Act was to achieve a more distinct
separation of functions and personnel between the legislature, in the form
of House of Lords and judiciary. This has been done by providing for the
creation of a Supreme Court in the United Kingdom, to replace the
Appellate Committee of the House of Lords, and by removing the Lord
Chancellor from the judicial process.
 Figure 5. Separation of Powers in UK

INDIA – Separation of Powers On a casual glance at the provisions of

the Constitution of India, one may be inclined to say that that the doctrine of
Separation of Powers is accepted in India. Under the Indian Constitution,
executive powers are with the President, legislative powers with Parliament
and judicial powers with Judiciary (Supreme Court, High Courts and
Subordinate Courts).
The constitution of India lays down a functional separation of the organs of the
State. Article 50 lays down that State shall take steps to separate the judiciary
from the executive. This is for the purpose of ensuring the independence of
judiciary. Article 122 and 212 provides validity of proceedings in Parliament
and the legislatures cannot be called into question in any Court. This ensures
the separation and immunity of the legislatures from judicial intervention on
the allegation of procedural irregularity. Judicial conduct of a judge of the
Supreme Court and the High Court cannot be discussed in the Parliament and
the State Legislature, according to Article 121 and 211 of the Constitution.
Articles 53 and 154 respectively, provide that the executive power of
the Union and the State shall be vested with the President and the Governor
and they enjoy immunity from civil and criminal liability.

The President’s function and powers are enumerated in the Constitution itself.
Parliament is competent to make any law subject to the provisions of
the Constitution and there is no other limitation on it legislative power.
The Judiciary is independent in its field and there can be no interference with
its judicial functions either by the Executive or by the Legislature. The Supreme
Court and High Courts are given the power of judicial review and they can
declare any law passed by the Parliament or the Legislature unconstitutional.
Taking into account these factors, some jurists are of the opinion that the
doctrine of Separation of Powers has been accepted in the Indian Constitution.

In I.C.Golak Nath v. State of Punjab21, it was observed: “The Constitution brings

into existence different constitutional entities, namely, the Union, the States
and the Union Territories. It creates three major instruments of power,

21
1967 AIR 1643
namely, the Legislature, the Executive and the Judiciary. It demarcates their
jurisdiction minutely and expects them to exercise their respective powers
without overstepping their limits. They should function within the spheres
allotted to them.

If we study the constitutional provisions carefully, it is clear that the doctrine

of Separation of Powers has not been accepted in India in its strict sense. In
India, not only there is functional overlapping but there is personnel
overlapping also. The Supreme Court has power to declare void the laws
passed by the legislature and the actions taken by the executive if they violate
any provision of the Constitution or the law passed by the legislature in case of
executive actions. The executive can affect the functioning of the judiciary by
making appointments to the office of Chief Justice and other judges. One can
go on listing such examples yet the list would not be exhaustive.

In Indira Nehru Gandhi v. Raj Narain22, it was observed: “That in the

Indian Constitution there is separation of powers in a broad sense only. A rigid
separation of powers as under the American Constitution or under the
Australian Constitution does not apply to India. Chandrachud J. also observed
that the political usefulness of doctrine of Separation of Power is not widely
recognized. No constitution can survive without a conscious adherence to its
fine check and balance. The principle of Separation of Power is a principle of
restraint which has in it the precept, innate in the prudence of self
preservation, that discretion is the better part of valour.”

Thus doctrine of separation of powers is not fully accepted in the

Indian Constitution. It can be said with the observation of Mukherjee, J. in Ram
Jawaya v. State of Punjab: “The Indian Constitution has not indeed recognized
the doctrine of separation of powers 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.”

22
AIR 1975 SC 2299
Functional Overlapping

The legislature besides exercising law making powers exercises judicial powers
in cases of breach of its privilege, impeachment of the President and the
removal of the judges. The executive may further affect the functioning of the
judiciary by making appointments to the office of Chief Justice and other
judges. Legislature exercising judicial powers in the case of amending a law
declared ultra vires by the Court and revalidating it.23 Legislature can impose
punishment for exceeding freedom of speech in the Parliament, this comes
under the powers and privileges of the parliament. But while exercising such
power it is always necessary that it should be in conformity with due
process. The heads of each governmental ministry is a member of the
legislature, thus making the executive an integral part of the legislature. The
council of ministers on whose advice the President and the Governor acts are
elected members of the legislature. Legislative power that is being vested with
the legislature in certain circumstances can be exercised by the
executive.[10] If the President or the Governor, when the legislature or is not
in session and is satisfied that circumstances exist that necessitate immediate
action may promulagate ordinance which has the same force of the an act
made by the Parliament or the State legislature. The Constitution permits,
through Article 118 and Article 208, the Legislature at the Centre and in the
States respectively, the authority to make rules for regulating their respective
procedure and conduct of business subject to the provisions of this
Constitution. The executive also exercises law making power under delegated
legislation. The tribunals and other quasi-judicial bodies, which are part of the
executive discharge judicial functions. The higher judiciary is conferred with
the power of supervising the functioning of subordinate court. It also acts as a
legislature while making laws regulating its conduct and rules regarding
disposal of cases.

Means of Checks and Balances:

The organs of the State while being separated also discharge each other’s
function. The powers and functions of each organ are subject to restrictions
23
L Chandra Kumar v. Union of India, (1995) 1 SCC 400.
which would be the function of another organ. The laws made by the
parliament and State legislatures are subject to judicial review. Any law that is
contravention to Part III ; Fundamental Rights, would be declared ultra vires by
the Supreme Court and High Courts in exercise of power of judicial review, as
laid down in article 13 of the Constitution.

The supreme court has the power to declare void the laws passed by the
legislature and the actions taken by the executive if they violate any provision
of the constitution or the law passed by the legislature in case of executive
actions. Even the power to amend the constitution by the parliament is subject
to the scrutiny of the court. The court can declare any law void it affects the
basic structure of the Constitution.

The constitution has invested the constitutional courts with the power to
invalidate laws made by the Parliament and State Legislature transgressing
constitutional limitations. Where an Act made by the legislature is invalidated
by the courts on the ground of legislative incompetence, the legislature cannot
enact a law declaring that the judgment of the Court shall not operate; it
cannot overrule or annual the decision of the Court. But this does not mean
that the legislature which is competent to legislate that law cannot re enact it.
It is open to the legislature to alter the basis of the judgment. The new law or
the amendment law so made can be challenged on other grounds but not on
the ground that it seeks to in effectuate or circumvent the decision of the
court. It necessary that each organ functions within its well settled limits of
authority. The check and balance mechanism would make sure that the actions
of the each organ is within its well defined limits. The doctrine of ultra vires lies
down that any law that is in contravention of Part III of the constitution is void
and hence ultra vires.

The judicial review power of the higher judiciary under Article 32 and 226
empowers the Courts to check the constitutionality of every law made by the
Parliament and the Legislatures. This is a check on the legislative act. Judicial
review is also applicable to executive actions. The grounds on which a
legislative or executive action can be challenged is the golden trilogy of Article
14, 19 and 21. Judicial review in India is based on the assumption that the
Constitution is the supreme law of the land, and all governmental organs,
which owe their origin to the Constitution and derive their powers from its
provisions, must function within the frame work of the Constitution.

It is also necessary to state that the legislative power of the Parliament and the
State legislature are laid down in Article 245. Article 254, along with VII
Schedule any law which is repugnant to VII schedule will be void to that extent.
The control of the executive is ensured by making it, accountable to the
Parliament. The legislative power of the executive under ordinance is limited.
There can be judicial review of Presidents satisfaction of the necessity to
promulgate an ordinance. The supremacy in appointment of judges to the
higher judiciary is with the Executive with the consultation of the Chief Justice,
this is while ensuring the independence of judiciary. In a leading case it was
held -

“In our country, the “Constitution is supreme lex, the paramount law of
the land and there is no authority, no department or branch of the State,
which is above or beyond the Constitution or has powers unfettered and
unrestricted by the Constitution. The Constitution has devised a structure of
power relationship with checks and balances and limits are placed on the
powers of every authority or instrumentality under the Constitution. Every
organ of the State, be it the executive or the legislature or the judiciary,
derives its authority from the Constitution and it has to act within the limits of
such authority. Parliament too, is a creature of the Constitution and it can only
have such powers as are given to it under the Constitution”.24

Thus referring to the above content it proves that Separation of Power is

practiced in India but not that rigidly. It is not embodied in the constitution
though practiced. The three main powers do cross their limit and interfere in
each other’s task whenever necessary.

AUSTRALIA – Separation of Powers

24
Minerva Mills Ltd v. Union of India, (1980) 3 SCC 625
“It is clear that the Australian Constitution lacks
sufficient expression and clarification of the roles,
relationships and powers of the Parliament, Cabinet
and Prime Minister and Head of State, which
contributes to problems arising from a lack of true
separation of powers”.
-Andrew Bartlett Senator for
Queensland

The doctrine of the separation of powers in Australia divides the institutions of

government into three branches: legislative, executive and judicial. The
legislature makes the laws; the executive put the laws into operation; and the
judiciary interprets the laws. A strict separation of powers is not always
evident in Australia; instead the Australian version of separation of powers
tries to combine the basic democratic concepts embedded in the Westminster
system, the doctrine of "responsible government" and the United
States version of the separation of powers. The issue of separation of powers
in Australia has been a contentious one and continues to raise questions about
where power lies in the Australian political system.
Although it is assumed that all the branches under the Separation of powers do
not overlap, there is sometimes a ‘common ground’ between all three levels.
In Australia there is little separation between executive and legislative. In
Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan25,
the high court held that a strict division between these two levels was not
practical and re-affirmed the constitution to outline this (German, 2012. The
first level that will be looked at with be the Parliament System, respectively the
Executive and Judiciary branches will follow along with an explanation of why
this doctrine is important to Australia and supports to constitution.
The first three chapters of the Australian Constitution are headed respectively
"The Parliament", "The Executive Government", and "The Judicature". Each of
these chapters begins with a section by which the relevant "power of the
Commonwealth" is "vested" in the appropriate persons or bodies. The
historical context in which the Constitution was drafted suggests that these

25
(1931) 46 CLR. 73
arrangements were intended to be connected with federal ideas along
American lines.
On the other hand, the Constitution incorporates responsible government, in
which the legislature and the executive are effectively united. This
incorporation is reflected in sections 44, 62 and 64 of the Constitution.

Legislative and Executive Powers:

Section 64 provides that federal Ministers - members of the executive - must
sit in Parliament. The specific requirement for ministers to sit in Parliament
established the connection between executive and legislative, effectively
preventing an American-style separation of the two. Strictly speaking, any
person may be appointed a Minister, but their appointment lapses if they do
not gain a seat in either house of the Parliament within three months. This
provision was necessary in 1901, as the first government was sworn in on 1
January but the first parliament was not elected until late March. No non-
parliamentarian was appointed a Minister since then, until the appointment of
Bob Carr as Foreign Minister in 2012. However, the provision is still relevant. It
applies when a minister in the House of Representatives loses their seat at a
general election; despite no longer being a member of parliament, the Minister
will typically retain their portfolio for some days after the election, until the
new government is sworn in. It also applied when John Gorton became Prime
Minister in 1968; he was sworn in while a member of the Senate, then he
resigned in order to contest a by-election for a lower house seat, which he
won, but between his resignation from the Senate and being elected to the
House of Representatives, he remained Prime Minister without holding any
seat in Parliament.
In Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan,
the High Court of Australia held that it was impossible, to insist upon a strict
separation between legislative and executive powers. It was found that
legislative power may be delegated to the executive, and as a result upheld the
validity of delegated legislation. By contrast, in its insistence on a strict
separation of "judicial power", the High Court has been less willing to
compromise.
The executive is not only physically part of the legislature, but the legislature
can also allocate it some of its powers, such as of the making of regulations
under an Act passed by Parliament. Similarly, the legislature could restrict or
over-rule some powers held by the executive by passing new laws to that
effect, though these could be subject to judicial review.
The exceptionally strong party discipline in Australia, especially in the lower
house, has had the effect of weakening scrutiny of the executive by the
legislature since within the lower house, every member of the numerically
larger party will almost always support the executive and its propositions on all
issues.
On the other hand, the Senate has had the effect of restraining the power of
the executive through its ability to query, amend and block government
legislation. The result of the adoption of a proportional system of voting in
1949 has been that the Senate in recent decades has rarely been controlled by
governments. Minor parties have gained greater representation and Senate
majorities on votes come from a coalition of groups on a particular issue,
usually after debate by the Opposition and Independents.
The Constitution does, moreover, provide for one form of physical separation
of executive and legislature. Section 44, concerning the disqualifications
applying to membership of Parliament, excludes from Parliament government
employees who hold "an office of profit under the crown" along with people in
certain contractual arrangements with the Commonwealth. This was
demonstrated in 1992 after Independent MP, Phil Cleary, had won the
Victorian seat of Wills. Cleary, on leave without pay from the Victorian
Education Department at the time of his election, was held in Sykes v
Cleary26 to be holding an office of profit under the Crown and disqualified. The
Court noted that that Section 44's intention was to separate executive
influence from the legislature.

26
(1992) 176 ClR 77
Separation of Federal Judicial Power: As early as New South Wales v
Commonwealth (Wheat Case) (1915)27, the High Court decided that the strict
insulation of judicial power was a fundamental principle of the Constitution.
This also applies to tribunals and commissions set up by Federal Parliament
which, unlike some of their equivalents in the states, can only recommend
consequences. The Federal Parliament itself has the rarely used privilege of
being able to act as a court in some circumstances, primarily where it may
regard a non-member as acting "in contempt" of parliament.
The reasoning in the Wheat Case was taken further in Waterside Workers'
Federation of Australia v JW Alexander Ltd (1918)28. A decisive distinction
between judicial and arbitral functions was drawn.
A consequence of the Australian version of the separation of powers is its role
in encouraging judicial deference to the "political" arms of government. The
normal propensity of the High Court is to recognise that separation of powers
requires not only that the "political branches" should not interfere with judicial
activity, but also that the judiciary should leave politicians and administrators
alone.
The doctrine of persona designata permits non-judicial functions to be
conferred on judges in their personal capacity, as opposed to their judicial
capacity.

Separation of Powers in the States:

While there are strong textual and structural bases for the independence of
the judiciary in the Commonwealth Constitution, the same is not true of the
State constitutions. State courts, unlike their federal counterparts, are
therefore capable of exercising non-judicial functions. For example, the District
Court of South Australia, through its Administrative and Disciplinary Division,
conducts merits review of administrative decisions, a function which at
Commonwealth level can only be exercised by Executive tribunals.
Nevertheless, a degree of judicial independence is maintained at State level by
convention.

27
(1915) 20 CLR 54
28
[1918] HCA 56
The federal separation of powers also has implications for State courts, due to
the fact that State courts may be invested with federal judicial power under
section 71 of the Commonwealth Constitution. On this basis it was held
in Kable v Director of Public Prosecutions (NSW) 29that a State court could not
be given a function inconsistent with its status as a potential repository of
federal judicial power. This principle was recently applied by the High
Court in South Australia v Totani 30in relation to the Serious and Organised
Crime (Control) Act 2008 (SA). Section 14(1) of the Act required members of
the Magistrates' Court of South Australia to make control orders on application
by the Commissioner of Police, provided only that the Magistrate was satisfied
that the person subject to the control order was a member of a declared
organisation. Even though the functions of the Magistrates' Court under the
Act are purely a matter of South Australian law, the fact that the Court is also
capable of exercising federal jurisdiction was held to require that it maintain
certain standards of independence and impartiality so that it retain the
character of a court.
Parliamentary scrutiny of the executive and, in particular, by the New South
Wales Legislative Council, was tested in the 1990s when Treasurer Michael
Egan, on behalf of Cabinet, refused to table documents in the Legislative
Council of which he was a member. The Council, determined to exercise its
scrutiny of the executive, pressed the issues and eventually adjudged the
Treasurer in contempt, suspending him from the house twice. The matters
were disputed in three cases in the High Court and the Supreme Court of New
South Wales. The results upheld that principle that the Legislative Council does
have the power to order the production of documents by a member of the
House, including a minister, and can counter obstruction. However, the extent
of the Legislative Council's power in relation to Cabinet documents remains
unclear.

29
(1996) 189 CLR 51
30
[2010] HCA 39
Figure 6. Separation of Powers in Australia.

CANADA- Separation of Powers

Canada's system of government is based on a parliamentary model quite

distinct from the presidential system operating in the United States. One of our
leading constitutional writers said that Canada’s retention of the British system
of responsible government is “utterly inconsistent with any separation of the
executive and legislative functions”31. While this is one important view, it has
never been approved by the Supreme Court of Canada. Indeed, the Supreme
Court of Canada has made passing reference to the doctrine of the separation
of powers in several cases, including Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455,
479 and Provincial Judges Reference, [1997] 3 S.C.R. 3 at para. 108. On
occasion, the Court has used muscular language, as in Operation
Dismantle v. The Queen,32when the Court referred to the doctrine as one of
the “essential features of our constitution”. In R. v. Power, below, the
separation of powers was actually harnessed by the court for use as an
operative doctrine to reinforce the independence of Crown Attorney decisions
as against judicial interference with prosecutorial decisions. The “rule of law” is
a highly textured expression [...] conveying, for example, a sense of
orderliness, of subjection to known legal rules and of executive accountability
to legal authority.

Because Canadian parliamentary democracy increasingly trends towards

power concentration in the executive branch – a tendency that has disturbed
many observers – it may be time to reconsider the corrective role that could be
played by the separation of powers theory in Canadian constitutional doctrine.

31
Hogg, Constitutional Law of Canada, 1999 student ed., p. 321
32
[1985] 1 S.C.R. 441, 491
Canadian Constitution and Separationism:

The conventional machinery that integrates the executive and legislative

branches in Canada obscures the very real structural separation of powers that
the text of the constitution ordains. The Constitution Act, 1867 sets out
separate and divided powers that, at least textually and formally, have close
parallels to presidentialism. Blaikie drew attention to this. After describing the
conventional machinery which integrates the legislative and executive
branches, the Supreme Court went on to observe:

“The Government of the province is not a body of the

Legislature's own creation. It has a constitutional
status and is not subordinate to the Legislature in the
same sense as other provincial legislative agencies
established by the Legislature (Blaikie v. A.G. Quebec
(No. 2) (1981), 123 D.L.R. (3d) 15 at 122 (S.C.C.)”

It is useful to elaborate further on the Court’s observations about formal

separation and conventional integration. The Constitution Act, 1867
establishes executive power by Sections. 9-16. These provisions vest the
executive power in the Queen, and call for its exercise by the Governor
General and Privy Council. The Constitution Act, 1867 establishes significant
power in the executive branch, including, by S. 15, the command of the armed
forces. The Constitution Act, 1867 identifies and organizes separate
constitutional status as well for the legislature (sections 17-52) and judiciary
(sections 96-101) and specifies their respective powers and limits.

This is why it is accurate to say that, at least textually and formally,

the Constitution Act, 1867 has close parallels to presidentialism. Although the
realities of conventional integration have made Canada’s formal separation of
powers little noticed, it is worth remembering that within the text of
the Constitution Act, 1867, powers are formally and structurally separated, as
we find in presidential systems. This provides a textual basis for any court that
in future decides to improvise a separation of powers doctrine specific
to Canada’s parliamentary system.

It is also worth remembering that within the text of the Constitution Act,
1867 the three branches of government are connected functionally “as to give
to each a constitutional control over the others.” Parliament is invested with
constitutional power to enact all federal laws and to establish federal courts.
Parliament is checked by the power of the executive to call the House of
Commons into session (S. 38) and by the power of the judiciary to declare laws
enacted unconstitutional. Parliament is also checked by power in the executive
to reserve Bills passed by the Houses of Parliament and to disallow laws
enacted (secs. 55-7). These veto-like powers, designed for British control of
Canadian law-making, have long since fallen into disuse, but they still exist in
the text and structure of the Constitution. The Judicial branch has
constitutional power to try all cases, to interpret the laws in those cases and to
declare any law or executive act unconstitutional. The judiciary is checked by
power in the executive to appoint its members; by power in the legislature to
enact amendments that overturn judicial decisions, including many
constitutional decisions (Charter of Rights, S. 33); and also by the combined
power of the executive and legislative branches to remove judges.

The Constitution of Ceylon is drawn from the same British colonial sources as
the Constitution of Canada. It is interesting to observe in that Constitution’s
structure a closely similar formal constitutional separation of powers. It was
this structural separation which, setting out executive, legislative and judicial
powers in separate chapters that motivated the Privy Council to find “an
intention to secure in the judiciary a freedom from political, legislative and
executive control.” Because of that intention their Lordships overturned special
legislation that would have intruded the legislative power too deeply into the
judicial sphere ( Liyanage v. The Queen33). Perhaps this ruling is further
evidence that the separation of powers doctrine is capable of more operational
development in parliamentary systems, including Canada. Indeed, there are
some dicta in this case which shapes Canada’s important doctrine of judicial
independence out of separationist language.

33
1967 1 A.C. 259
 Conclusion

Conferment of power in a single body leads to absolutism. But, even after

distinguishing the functions, when an authority wields public power, then
providing absolute and sole discretion to the body in the matters regarding its
sphere of influence may also cause abuse of such power. Therefore, the
doctrine of separation of powers is a theoretical concept and it is impracticable
to follow it absolutely.
The status of a modern state is a lot more different than what it used to be. It
has evolved a great deal from a minimal, non-interventionist state to an
welfare state, wherein it has multifarious roles to play, like that of a protector,
arbiter, controller, provider. This omnipresence of the state has rendered its
functions becoming diverse and problems, interdependent; and any serious
attempt to define and separate those functions would cause inefficiency in
government. Hence, a distinction is made between ‘essential’ and
‘incidental’ powers of an organ. According to this differentiation one organ
can’t claim the powers essentially belonging to other organ because that
would be a violation of the principle of separation of powers. But, it can claim
the exercise of the incidental functions of another organ. This distinction
prevents encroachment of an organ into the essential sphere of activity of the
other.
It is the exercise of incidental powers only which has made executive grow
everywhere in this social welfare state i.e. India. It has assumed a vital role but,
it has not usurped any role from any other wing. It just happened that the
other two organs, namely, judiciary and legislature, became unsuitable for
undertaking the functions of this welfare state and as a consequence the
functions of the executive increased. As controller and provider, the judicial
processes were very time consuming and the legislature was overburdened
with work.
Therefore, it was in natural scheme of things which made the administrators
end up performing a variety of roles in the modern state including those of
legislature and judiciary too, to an extent. Further, the check of the
adjudicators over functioning of the other two has been regarded as an
‘essential’ feature of the basic structure theory. The judicial review power is a
preventive measure in a democratic country which prevents administrators
and law-makers to exercise their whims and caprices on the lay man and turn it
into a despotic regime. There have been cases where the judiciary has dictated
the ambit of their power to the implementers and the mode to exercise it. Not
even the representatives of people are immune to the power of the courts.
Two recent Supreme Court judgments- on the cash-for-query case and on the
Ninth Schedule – have once again brought the powers and roles of the
legislature and the judiciary into focus.
In a democratic country goals are enshrined in the constitution and the state
machinery is then setup accordingly. And in India, it can be seen that
constitutional provisions are made as such to support a parliamentary form of
government where the principle can’t be followed rigidly. The S.C. rulings also
justify that the alternative system of checks and balances is the requirement,
not the strict doctrine. Constitutionalism, the philosophical concept of the
constitution also insists on limitations being placed upon governmental power
to secure basic freedoms of the individual. Hence, the conclusion drawn out of
the study is that there is no strict separation of powers but the functions of the
different branches of the government have been sufficiently differentiated.