Chapter 3

Separation of Powers
CONTENTS
I. OBJECTIVES
II. CONCEPT OF SEPARATION OF POWERS
III. HIISTORICAL BACKGROUND AND ORIGIN
A. Montesquieu's Doctrine of Separation of Powers
B. Basic Features of the Doctrine Separation of Powers as Enunciated by
Montesquieu
C. Checks and Balances of Power
D. Impact of the Doctrine
IV. EVALUATION OF THE DOCTRINE OF SEPARATION OF POWERS
A. Key Benefits And Advantages Of The Doctrine Of Separation Of Powers
B. Defects of the Doctrine
V. SEPARATION OF POWERS IN PRACTICE
A. Separation of Powers in Britain
B. Separation of Powers in the United States of America
C. Separation of Powers in India
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UNIT 01: CHAPTER 3
Separation of Powers
I. OBJECTIVES
Students shall:
i. Gain knowledge about separation of powers.
ii. Gain knowledge about the limitations.
iii. Understand the application of the Doctrine of Separation in modern constitutions.
1. Label the pictures by choosing one of the following:
a. Legislature
b. Judiciary
c. Executive
Take this quiz to find out how much you know.
2. The Legislature enables the Government to _____ laws.
a) interpret and enforce
b) frame laws and amend
3. The written Constitution defines the ________.
a) power of the three organs
b) ii role of the councilors
4. The words ' am the State' which sparked the Separation of power are attributed to ___
a) James I
b) Louis XIV
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5. The words "Power halts power'' suggest that the separate functions of the
a) Government will operate as balance against the other two
b) Each will block and tackle the other to stop encroachment
6. The famous Declaration of Rights took place in 1789,_____ the French Revolution?
a) during
b) after
c) before
7. The powers of the legislature, executive and judicial arms are better described as ___
a) initiatives
b) ii functions
8. The parliamentary Form of Government combines______ powers.
a) legislative and executive
b) executive and judiciary
9. Greater power of the Executive arm is required to extend services and rights for the
people.
a) Welfare State
b) Theocratic State
10. The Indian Constitution is broadly similar to that of ________
a) Britain
b) United states
c) France
11. The Executive head in India is the __________
a) Prime Minister
b) President
c) Chief Minister
Share what you have learnt through the class discussion.
48
II. CONCEPT OF SEPARATION OF POWERS
In the previous chapter of this book, we examined the different organs of government. For the
preservation of the political liberty of the individuals and democracy, it becomes necessary in a
state to establish special organs for the exercise of powers. The powers of the government are
divided between its organs in accordance with the nature of powers to be exercised. Broadly, the
powers of a government in a state have been classified as the power to:
i. Enact laws i.e., powers of the Legislature.
ii. Interpret laws i.e. powers of the Judiciary.
iii. Enforce laws i.e. powers of the Executive.
The theory of separation of powers in its simplest form implies that all the above functions
should be entrusted to three different authorities. The three organs of the government should be
kept separate and distinct. One organ should be independent of the control of others.
Our Constitution
Each organ shall exercise its powers within its own sphere. This doctrine entails that each organ
shall not encroach upon or interfere with the powers and independence of other organs of
government. If any organ encroaches into the terrain of the other organ, it shall be checked by
another organ of the government. Thus, no new organ is created over and above the existing
organs of government, to check encroachment.
On the whole, separation of powers requires the existence of a written Constitution to define the
formal powers of each organ. The powers shall be so defined and divided to create a system of
checks and balances of powers among the organs. This view finds support from the writings of
Carl J. Friedrich(1901-1984), a German-American political theorist.
In the words of Wade and Phillips (Constitutional Law, 1960), separation of powers may mean
three different things:
49
i. The same persons should not form part of more than one of the three organs of the
Government,
ii. One organ of the government should not control or interfere with the exercise of its
function by another organ
iii. One organ of the government should not exercise the functions of another
The concept of separation of powers can be traced to Aristotle (384 -322 B.C). Aristotle in his
treatise Politics called the three organs of the government as deliberative, executive and
judicial. He gave the description about the organization and functions of these organs, without
mentioning their separation from each other. In the 14th century, the Italian thinker Marsilius of
Padua (1275-1342)drew a clear distinction between legislative and executive functions of the
government. In the 16th century, the French philosopher Jean Bodin (1530-1596) stated that
judicial functions must be performed by the independent Magistrate, free from the influence of
the Monarch.
In the 17thcentury, the British political thinker John Locke (1632-1704) deduced from a study of
the English constitutional system that political power was to be divided among several bodies.
According to Locke, the executive and federative powers can be combined but the union of
executive and legislative organs shall be prohibited to protect the political liberty of people.
According to him, an ideal form of government is civil government with limited powers.
The most original, systematic as well as scientific elaboration of the concept of 'separation
of powers' has been given by the French philosopher Baron De Montesquieu (1689-1755) in
the 18th century. Montesquieu's theory on 'separation of powers' has become the model for
governance of all democracies.
During his time, he saw the oppressive and despotic rule of French King Louis XIV (1661-
1715). The ruler enjoyed the absolute powers of State, and the prevailing dictum was,"I am
the State". Liberty of the people was suppressed under the despotic rule of the King and his
administrators.
During his visit to England, Montesquieu experienced the sense of liberty and freedom
enjoyed by the citizens of England. He was very impressed with the thoughts of Locke. He
compared their system of governance with the system prevailing in his country. He
examined the separation of powers of the government, and their exercise by separate
organs of the government namely, the King, Parliament and the law courtsin the
governance structure in England.
III. HISTORICAL BACKGROUND AND ORIGIN
A. Montesquieu's Doctrine of Separation of Powers
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The doctrine of the separation of powers emerged as a distinct doctrine in his famous book
Esprit Des Lois (The Spirit of Laws) published in 1748.
1. Division of powers. Montesquieu does not use the term "federative power" for the
executive power in regard to external affairs. He uses the term "executive" to cover all
internal affairs, both governmental and judicial; i.e., the power to apply and execute
laws in particular cases as judicial power, and the power to enact laws as legislative
power.
2. Different departments must exercise the three powers of the government with their
respective personnel. He provided the reason for the division of powers between the
three branches of the government as follows:
a) When the legislative and executive powers are united in the same persons,
there cannot be liberty. It may lead to apprehensions that the monarch may
enact tyrannical laws and execute them in a tyrannical manner, as the same
agency becomes the maker and executor of laws.
b) Where judicial powers are combined with the legislative, the life and liberty of
the subjects would be exposed to arbitrary control, as the Judge would be the
legislator.
c) Where the judicial power is combined with the executive power, the Judge
might behave in a violent and oppressive manner. The prosecutor and the Judge
would then be the same person and authority.
d) If powers are vested in one organ, or exercised without separation, governance
would not be effective.
B. Basic Features of the Doctrine Separation of Powers as Enunciated by
Montesquieu
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3. It is inherent in any authority to abuse powers unless limitations are imposed on its
exercise.
4. For safeguarding the liberty of people, each organ of the Government shall have the
obligation to act within its own sphere and not beyond it. If the authority acts beyond
the permitted limits, it would be checked by the other organs.
This means that the executive organ shall exercise some control over legislative and
judiciary, the legislative organ over executive and judiciary, and the judiciary over
legislative and executive organs. The system of checking the encroachment of powers
by each organ and thus balancing the division of powers is termed as the system of
'checks and balances'.
This kind of overview is the correct meaning of the maximle pouvoirartere le pouvoir
which means, power halts power. By separating the functions of the executive,
legislature and judiciary, one power may operate as a balance against another and
thus have a check on the power exercised by another.
Source:: http://www.peo.gov.au/students/fact_sheets/separation_
powers_parliament_executive_judiciary.html
The origin of the concept of check and balances is specifically credited to Montesquieu.
This concept provides a system-based regulation that allows one branch to limit another.
The following chart explains the operation of check and balance mechanism between
different organs of the government in the United States.
C. Checks and Balances of Power
POWER TO MAKE
JUDGEMENTS ON LAW
POWER TO MAKE
AND CHANGE LAW
POWER TO PUT
LAW INTO ACTION
PARLIAMENT
EXECUTIVE
GOVERNMENT
JUDICIARY
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Source: www.sville.us
Montesquieu advocated the adoption of this doctrine in his own country's political system.
His teachings gave boost to the French Revolution and led to the adoption of the
Declaration of Rights in 1789.
The Declaration provided that:
"Every society in which Separation of Powers is not determined has no Constitution. The
French Constitution, 1791, made executive, legislative and judiciary independent of one
another.
English and American jurists have found merit in this doctrine. The English jurist
Blackstone (1723-1780) in his book Commentaries on the Laws of England (1765),
observed:
'Were it joined with the legislative, the life, liberty, and property of the subject would be
in the hands of arbitrary judges, whose decisions would be then regulated only by their
own opinions, and not by any fundamental principles of law; which, though legislators
may depart from, yet judges are bound to observe. Were it joined with the executive, this
union might soon be an overbalance for the legislative. For which reason... effectual care
is taken to remove all judicial power out of the hands of the king's privy council; who, as
then was evident from recent instances might soon be inclined to pronounce that for law,
which was most agreeable to the prince or his officers. Nothing therefore is to be more
avoided, in a free constitution, than uniting the provinces of a judge and a minister of
state.
D. Impact of the Doctrine
Separation of Power and Checks and Balances
writes the laws
confirms presidential
appointments ratifies
treaties grants money
declares war
LEGISLATIVE BRANCH
(Congress)
may declare laws
unconstitutional
may adjourn Congress
in certain situations
may veto bills
may reject
appointments
may reject
treaties
may withhold funding for
presidential initiatives
may impeach
president
may override
a veto
may propose constitutional
amendments to overrule
judicial decisions
may impeach Supreme
Court justices
may reject
appointments to
the Supreme Court
JUDICIAL BRANCH
(Supreme Court)
interprets the Constitution
and other laws
reviews lower-court
decision
EXECUTIVE BRANCH
(President)
proposes laws administers
the laws commands armed
forces appoints
ambassadors and other
officials conducts foreign
policy negotiates treaties
appoints judges
may declare executive
actions unconstitutional
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James Madison (1751-1836), the 4th President of United States of America wrote in The
Federalist that "The accumulation of all powers, legislative, executive, and judiciary, in
the same hands, whether of one, a few, or many, and whether hereditary, self-appointed,
or elective, may justly be pronounced the very definition of tyranny.
The doctrine of separation of powers forms the foundation on which the entire structure of
the U.S. Constitution [1787] is based. Montesquieu thus became the intellectual father of
the American Constitution.
The doctrine can be better evaluated after studying its key benefits and defects.
Different personnel, with respective capabilities for different organs, bring efficiency
to the performance of functions and administration. This indeed serves the purpose
of the State and its people. Each organ must do its job to the best of its efficiency, and
with due regard to its responsibility.
The doctrine of separation of powers, safeguards the liberty and freedom of
individuals. The doctrine requires that each organ must act within the sphere of law.
Thus, it establishes the government of law rather than of official will.
It aims at protecting freedom of individual from the tyrannical rule of absolute
monarchy. Montesquieu developed the theory as a means of limiting the absolute
powers of the ruler in France.
One important aspect of this doctrine is to establish an independent judiciary that is
free from administrative discretion. Montesquieu was interested in setting the
judicial power as a check on and as arbiter between the other two organs.
The system of check and balances within the organs of the government provides
stability to the government by protecting the sovereignty of the state.
It promotes harmonious exercise of powers and functions within the three organs.
Historically speaking, there was no separation of powers under the British
Constitution, as construed by Montesquieu. A. V. Dicey had observed that the British
Constitution had"a weak Separation of Powers". As remarked by Barnett in
Constitutional and Administrative Law(2005),' Britain has anuncodifiedor unwritten
Constitution. Much of the British constitution is embodied in written documents,
IV. EVALUATION OF THE DOCTRINE OF SEPARATION OF POWERS
2
2
2
2
2
2
2
A. Key Benefits and Advantages of the Doctrine of Separation of Powers
B. Defects of the Doctrine
54
within statutes, court judgments and treaties as the supreme and final sources of law.
The statutes of Parliament can change the Constitution by passing new legislations..
The Constitution has other unwritten sources, including Parliamentary constitutional
conventions.
The three organs of government and their functions cannot be divided into water-
tight compartments. It would be wrong to say that they are not inter-connected,
though their mode of action may differ. The legislature deliberates; the executive
takes rapid actions and gives effect to legislative enactments and judicial decisions.
The Judiciary critically analyses the laws and actions of the executive, and may even
declare them invalid.
Extreme separation of powers prevents the unity and coordination needed to
administer the legally expressed will of the State; extreme checks and balances
create frictions and dead-locks that prevent smooth and efficient government.
The functions performed by each organ are not unique. A Judge makes law in the form
of precedents. The Executive legislates in the form of framing subordinate legislation,
such as rules, bye-laws, regulations, policies, schemes etc. The Legislature acts
judicially in deciding the breach of its privileges. Absolute separation of powers may
even prove hazardous in the smooth functioning of the government.
"Power tends to corrupt, and absolute power corrupts absolutely" arose as a part of a
quotation by John Emerich Edward Dalberg (1834-1902), a historian, politician and
writer, who is popularly known as Lord Acton, who expressed this opinion in a letter to
Bishop Mandell Creighton in 1887.
Separation of powers is in itself a protest against power. Its meaning can be better
analyzed if the use of the word powers of the organs is substituted by functions. The
word 'functions' implies attitude of service, while the word 'powers' implies force. The
government performs activities to serve the purpose of the State and its individuals
through its classified functions for which the different organs are created.
The doctrine can be better understood in two forms. First, it implies that
concentration of powers in the same person or same body of persons should be
avoided. Secondly, it implies division of those powers which essentially and primarily
belong to one organ and not the other. Then allied functions can be performed with
the coordination of the other organs. Emphasis must be laid on modification of the
concentration of powers. The British political scientist Herman Finer (1898-1969) in
one of his writings on The Theory and Practices of Modern Government had
observed that Montesquieu was searching for the means to limit the crown; to make a
Constitution to build canals through which, but not over which, power should stream;
2
2
2
2
2
2
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to create intermediary bodies; to check and balance probable despotism and yet did
not wish to fly extreme democracy.
The theory of separation in its strict sense cannot apply to the countries having
Parliamentary form of Government (Parliamentary form explained in previous
chapter) where the legislative and executive organs are combined.
Harold Laski (1893-1950), a British political theorist, stated in his book A Grammar of
Politics that this form of Government does not act as a deterrent to individual's
liberty. Rather, it secures an essential coordination between organs of Government
whose creative interplay is the condition of effective Government. It promotes an
essential principle of democracy i.e., Government for the people.
Montesquieu had envisaged that all the three organs of the government would be
given equal and independent position in the political organization of the country. But
in fact it is not so in reality. The concept of Welfare State demands more and more
action and services from the government such as health, education, food and public
distribution, public transport and supply of electricity. It tends to increase the powers
of the executive, and develop the executive as a multifunctional organ. Today, the
executive legislates, exercises judicial jurisdiction and plans the future activities of
the government. As remarked by Barker: 'If the growth of legislative organ, in
consequence of cabinet system, was the notable feature of 18th century, it may be
said that growth of executive organ in consequence of the extension of rights and the
corresponding extension of services which mostly fall to the lot of executive, is the
notable feature of 20th century".
Complete this activity by supply suitable information. Share your observations with the
class.
i. If any governmental organ encroaches on the other, it shall be restrained._________
ii. Distinguish and define the formal powers given to the three organs of the government.
iii. Government for the people is ________in the application of its laws.
iv. _________ has no written Constitution.
v. Life, liberty and right to property are priority subjects to be guarded by the ___________
Principles of the law.
vi. Extreme separation of powers leads to standoffs and _______________.
vii. 'Power tends to corrupt, and absolute power corrupts absolutely' is the opinion of _______
viii. 'Powers' are better expressed in the Constitution as ____________'
2
2
2
56
ix. The theory of Separation cannot be applied in totality where the government is _________
x. 'Sovereignty' of State means '_________' of State.
Depending on the forms of Government in a State, there is overlapping of powers among the
organs. This can be better explained by studying the functions performed by different organs in
the State.
In Britain, the three organs of Government are the Executive Head (the British monarch,
currently Queen Elizabeth II), Legislature comprised of House of Commons and House of
Lords, and the Judiciary. The British Queen acts as the nominal executive head devoid of
political powers. She holds the office by virtue of hereditary succession. The real
executive powers vests with the Prime Minister and the Council of Ministers. The Queen
exercises powers on the advice of Council of Ministers. Prime Minister and his Council of
Ministers are part of the legislature. They are collectively responsible to it and play
important role in legislative activities. They remain in office so long as they enjoy the
confidence of House of Commons. They make sub-ordinate legislations. They perform
judicial functions by being the members of Administrative Boards and Tribunals. The House
of Commons performs judicial function in case of breach of its own privileges.

Source: http://ourgoverningprinciples.wordpress.com/the-uks-westminster-system
V. SEPARATION OF POWERS IN PRACTICE
A. Separation of Powers in Britain
57
The Law Lords, who were the final arbiters of judicial disputes in Britain sat simultaneously
in the House of Lords, the upper house of the legislature, although this arrangement
ceased in October 2009 when the Supreme Court of the United Kingdom came into
existence.
Until the Constitutional Reform Act 2005, the Lord Chancellor was the head of the
Judiciary in Britain. He fused the Legislature, Executive and Judiciary, as he was the ex -
officio Speaker of the House of Lords, a Government Minister who sat in Cabinet and was
head of the Lord Chancellor's Department, which administered the courts, the justice
system and appointed judges . He sat as a judge on the Judicial Committee of the House of
Lords, the highest domestic court in the entire United Kingdom, and the Judicial
Committee of the Privy Council, the senior tribunal court for parts of the Commonwealth.
The Constitutional Reform Act, 2005, separated the powers, with legislative functions
vested with an elected Lord Speaker and the judicial functions vested with the Lord Chief
Justice. The Lord Chancellor's Department was replaced with a Ministry of Justice and the
Lord Chancellor currently serves in the position of Secretary of State for Justice. The
British governing system follows a Parliamentary form of Government. The British
Constitutional system has adopted a fusion of powers rather than separation of powers.
The U.S. Constitution has adopted Presidential form of Government. The three organs of
the Government are the President as the executive organ, the Supreme Court of America
and the subordinate courts as the judicial organ, and the Congress as the legislative organ,
with two houses - Senate (the upper house) and the House of Representatives (the lower
house).

B. Separation of Powers in the United States of America
Department of
Agriculture
Department of
Commerce
Department of
Defense
Department of
Education
Department of
Energy
Department of
Housing and
Urban Dev.
Department of
Health and
Human Serv.
Legislative
Branch
GAO
GPO
Library of Congress
Technology Assessment
Congr. Budget Office
The President
Executive Office of the President
OMB
The Whitehouse
Trade Representative
Environmental Quality
Science & Technology
Drug Control Policy
Judicial
Branch
U.S. Supreme Court
U.S. Court of Appeals
Court International Trade
U.S. Tax Court
Court of Military Appeals
Federal Judicial Center
Sentencing Commission
Department of
the Interior
Department of
Justice
Department of
Labor
Department of
State
Department of
Transportation
Department of
Treasury
Department of
Veterans Affairs
Independent Establishments and
Government Corporations
The Constitution
Executive
Branch
58
The theory of separation of powers finds its best expression in the United States of
America. The American Constitution did not explicitly state that powers ought to be
separate. It simply distributed the powers: the legislative powers are vested in the
Congress, the executive powers in the president, and the judicial powers in the court.
While apportioning the lion's share of powers to one organ of Government the Constitution
gave smaller slices to each of other organs. This was done to avoid concentration and
consequent abuse of power. The fathers of the constitution considered that power should
be limited, controlled and diffused. The law making power was vested in the Congress, but
the President received his share of powers to recommend measures, to summon Congress
in special session and to veto bills passed by the Congress. Similarly the Senate shared with
the President his powers to make appointments, declare war and ratify treaties. The
Congress acts in a judicial capacity in cases of impeachment of the President and Supreme
Court Judges.
The President is elected by the people and the Congress is also elected by the people.
Neither the President is responsible to the Congress nor the Congress is responsible to the
President. However while the judges of the Supreme Court are nominated by the
President, their appointments have to be ratified by the Senate. In certain circumstances,
the Senate may refuse to ratify the choices made by the President. The Congress cannot be
dissolved by the President. The President remains in power for four years, the members of
the Senate sit for six years and those of the House of Representatives for two years. The
President has been given the powers of making appointments but these have to be ratified
by the Senate. The Supreme Court has the power of judicial review. The Court has the
power to examine the laws passed by the Congress and the executive orders issued by the
President and declare null and void if it contravenes the provisions of the U.S.
Constitution. The President can declare war but he can do so only if he has got the approval
of both the Houses of the Congress. The President could intervene in the business of the
court through his power of pardon for all offences except treason.
The U.S. President appoints the members of the Cabinet with the approval of the Congress,
as executive heads of the Departments. The President and Secretaries are not members of
the Congress. The President has the power to call special sessions of Congress and veto the
bills, (except money bills) passed by the Congress. The U.S. Congress delegates law making
powers to the executive after laying down the legislative policy and principle.
India's governing system is broadly similar to that of Britain's. Both the countries have
adopted Parliamentary System of Government.
Under the Indian Constitution, the three organs of Government are the legislature,
executive and the judiciary. As stated in Article 79 of the Constitution of India, the
C. Separation of Powers in India
59
Parliament consists of the President and two Houses known as the Council of States and the
House of the People.
Judiciary refers to the Supreme Court of India, High Courts and the subordinate courts. The
Supreme Court of India is the final court of appeal for the whole of India.
The President is elected by the Electoral College consisting of the elected members of both
houses of Parliament and the elected members of the legislative assemblies of the state.
He/she is appointed for a fixed term of 5 years. The President of India is the nominal
executive head. The real executive is the Prime Minister and his/her Council of Ministers.
The President exercises his/her powers/functions with the aid and advice of the Prime
Minister & his/her Council of Ministers. Usually the advice is binding on the President.
The Prime Minister and his/her Council are normally Members of Parliament. They play an
active role in proposing a bill and voting a bill in the Parliament. A bill becomes an Act when
President gives his/her assent to it. The President has wide legislative powers to issue
ordinances for immediate action during the recess of legislature. An ordinance issued shall
have the force and effect as that of an Act by Parliament. President has the power to
dissolve House of People. The President has the power to declare a National emergency,
State Emergency and Financial Emergency. The President may be authorized to exercise
legislative powers in case of a State Emergency. The Council of Ministers including the
Prime Minister is collectively responsible to the House of People. Thus, they remain in
office so long as they enjoy the confidence of the House of People. The President may be
impeached by the Parliament.
Various provisions are incorporated in the Constitution to establish an independent
judiciary. Judges of the Supreme Court and High Courts shall be appointed by the President
after consultation with such Judges of the Supreme Court and of the High Courts in the
states, as laid down in Article 124 (2) of the Constitution. A nine-Judge Constitution Bench
of the Supreme Court (In re Presidential Reference, AIR 1999 SC 1) laid down the norms and
requirements of consultation process to be observed by the executive on the appointment
of judges to the Supreme Court and High Court and, transfer of the latter.

Government of India
Legislative Executive Judiciary
Rajya Sabhi
(250 seats)
Lok Sabha
(545 seats)
President
Vice President
Prime Minister
Supreme Court
High Courts
District Courts
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The privileges and the allowances of a Judge cannot be varied after his appointment. No
discussion shall take place in Parliament with respect to the conduct of any Judge of
Supreme Court or of High Court, except when a proceeding of impeachment is initiated
against him.
Article 50 of the Indian Constitution provides that the State shall take steps to separate
the judiciary from the executive in the public services of the state. The object behind
Article 50 is to provide for the independence of judiciary. The Judiciary in India interprets
the Constitution. The judiciary is entitled to scrutinize the legislations and administrative
process and assess whether or not they conform to the Constitution.
The judiciary provides for remedies for enforcement of Fundamental Rights of citizens,
guaranteed by the Constitution. A writ jurisdiction can be invoked to move the Supreme
Court under Article 32 and High Court under Article 226 of the Constitution.
The judiciary plays the role of legislature while laying its own procedures for the
dispensation of justice. It supervises, administers and controls the subordinate judiciary
and thus performs an administrative function.
The judges of Supreme Court and High Court can be removed on impeachment by the
legislature, only on the grounds of proved misbehavior or incapacity.
The Constitution of India provides for the powers and functions of the legislature. Article
246 of the Constitution provides that the Parliament and the Legislatures of the States
have powers to make laws. The matters are listed in Schedule VII of the Constitution under
Union List, State List and the Concurrent List.
Article 368 of the Constitution provides for constituent powers of the Parliament, and lays
down the procedure for amendment of the Constitution. In the exercise of its power of
judicial review, the Supreme Court of India in Keshavananda Bharati case (AIR1973 SC
1461) popularly known as Fundamental Right's Case, held that the Parliament in exercise
of its amending power under Article 368,could not alter the Basic Structure of the
Constitution. Thus the basic structure limits the amending power of the Parliament.
The Judges while deciding this case could not form a unanimous opinion on the provisions
of the Constitution which constitute its Basic Structure. On a perusal of different cases
decided by Supreme Court, the following features seem to emerge as the Basic Structure,
so as to be beyond the amending power of the Parliament under Article 368:
a. Supremacy of the Constitution;
b. Republic and democratic form of Government;
c. Secular character of the Constitution and State;
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d. Sovereignty of India;
e. Judicial Review and jurisdiction of courts under Article 32&Article 226
f. Separation of Powers and Independent Judiciary (In the case of State of Biharvs. Bal
Mukund Shah (AIR2000SC1296)
g. Right to Equality and Rule of Law
It is, therefore, for the Supreme Court of India to determine finally the essential features
constituting the framework of the Constitution. In other words, the Supreme Court has
assumed to itself the constituent power in exercise of Judicial Review.
In conclusion, the Indian Constitution has not adopted the doctrine of separation of
powers in its strict sense. Nevertheless, the Constitution of India has sufficiently
differentiated the essential functions of the organs and no organ shall assume to itself
what essentially belongs to other.
Fill up with appropriate details, based on your understanding
a. Where the Monarch is the Executive head: _________________________.
b. Where the President is the executive head; ___________________________.
c. Where the Monarch executes his/her powers through the Prime minister: ___________.
d. The Prime Minister in UK is helped by his/her ________________________.
e. Where the Lords sat in Parliament: _______________________.
f. The US Presidents holds his/her tenure for _____ years.
g. In India, the legislative Houses are called_____________ and __________ .
h. The Supreme Court is the _________ organ of the Indian government.
i. Moral and ethical issues [public sentiments] are concerns in _________ form of
government.
j. The Prime Minister in the executive head in the following:_________ and __________.
Answer the following briefly, in a short paragraph:
i. How did Wade and Phillips interpret the Separation of powers in their 1960 work?
ii. Distinguish between Aristotle's and Locke's definitions of the 'Separation of Powers'?
iii. What forced Montesquieu to adopt many of the principles of the British constitution?
62
iv. What are the powers vested with the President of United States?
v. How does the British Monarch exercise his/her powers?
vi. What are the legislative powers of the Indian President?
vi. What does Article 368 refer to?
ix. What are the judicial functions of the Magistrate in India?
x. How does the Indian Constitution interpret the 'separation of powers' doctrine?
Answer the following in about 200 words each:
1. Explain the Concept of Separation of Powers.
2. Explain Montesquieu's views on Separation of Powers.
3. Write brief notes on the following:
(i) Separation of Powers in Britain
(ii) Separation of Powers in the United States of America
4. Explain how the Doctrine of Separation of Powers is exercised in India.