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Project Topic:-

Separation of Power

Submitted by:-

Name : Harsh Gupta

Class : BBA.LLB (hons.)

Subject : Administrative Law

Enrollment no. : 1410103026

Admission no. : 14GSOL103014

Semester : 5th

Submitted To:-

Prof. Anindhya Tiwari Sir


PREFACE

This is the 1st edition of this project topic Separation of Power, authorized by Harsh Gupta. I take this
opportunity with most sincere responsibility at my command.

The principles of the Separation of Power are to a large extent the creation of the Courts and the
Legislature plays a relatively small part in their development. The scope and applicability of the
Separation of Power have, thus, been explained in a very large number of cases which came before the
court during the year.

The principle and practices related to these matters have been constantly attracting the attention of the
Courts. Decisions on the subject have been pouring in continuously.

This project highlights the different aspects of the basic elements of the statutory provisions.

The matter in this project has been discussed, keeping in the view, the requirement of the U.G.C. in
respect of the 3 year Law Course and 5 year B.B.A.LL.B. Integrated Courses Besides, the need of those
who are preparing for various competitive examinations.

I would, however, sincerely feel obliged to the readers of this project, for making suggestions on any
aspect of the work.

I thank warmly to the Prof. Anindhya Tiwari Sir, who are ever helpful and efficient.

- Harsh Gupta

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TABLE OF CONTENT

SERIAL NUMBER TITTLE


01 TABLE OF CONTENT
02 CERTIFICATE
03 ACKNOWLEDGEMENT
04 INDEX OF AUTHORITY
05 DECLARATION
06 CHAPTER-1

Introduction
Definition
History
07 CHAPTER-2

Separation of Powers

08 CHAPTER-3

Separation of Power in India


Separation of Powers in Pakistan
Separation of Powers in United
States

09 CONCLUSION
10 BIBLIOGRAPHY

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Certificate

The work undertaken by Mr. Anindhya Tiwari Sir is genuine to the best of my knowledge. The references
used by the student has been duly cited and acknowledged to my understanding.

Harsh Gupta

Name & Signature

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Acknowledgement

This project consumed huge amount of work and research. Still, implementation would not have been
possible if I did not have a support of many individuals. Therefore we would like to extend our sincere
gratitude to all of them.

First of all I am thankful to Mr. Anindhya Tiwari Sir for their support and for providing necessary
guidance concerning projects implementation.

I am also grateful to many books and articles for provision of expertise, and technical support in the
implementation. Without their superior knowledge and experience, the Project would like in quality of
outcomes, and thus their support has been essential.

I would like to express our sincere thanks towards my family who devoted their time and provided me
the financial resources for the same.

Thank you,

Harsh Gupta

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INDEX OF AUTHORITY

STATUTES

THE CONSTITUTION OF INDIA, 1950

BOOKS

Jain, M.P. (2010). Indian Constitutional Law. LexisNexis Butterworths Wadhwa Nagpur.
p. 921. ISBN 978-81-8038-621-3.
Peter Gerangelos ,The Separation of Powers and Legislative Interference in Judicial Process

TABLE OF CASE

01 Marbury v. Madison

DYNAMIC LINKS

WWW.INDIANKANOON.ORG

WWW.WESTLAWINDIA.COM

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DECLARATION

I Harsh Gupta hereby declare that this project report entitled Separation of Power submitted by me,
under the guidance of Prof. Anindhya Sir faculty of School of Law Galgotias University is my own and
has not been submitted to any other University or Institute or published earlier.

Place: Galgotias University

Date: 17/10/16

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Chapter 1

Introduction

The separation of powers is a model for the governance of both democratic and federative states. The
model was first developed in ancient Greece and came into widespread use by the Roman Republic as
part of the uncodified Constitution of the Roman Republic. The doctrine of separation of powers has
emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle. In the 16th and
17th centuries, French philosopher John Bodin and British politician Locke expressed their views about
the theory of separation of powers. But it was Montesquieu who for the first time formulated this doctrine
systematically, scientifically and clearly in his book Esprit des Lois (The Spirit of the Laws), published
in the year 1748.1

The separation of powers, often imprecisely and metonymically used interchangeably with the trias
politica principle,2 is a model for the governance of a state (or who controls the state). The model was
first developed in ancient Greece. Under this model, the state is divided into branches, each with separate
and independent powers and areas of responsibility so that the powers of one branch are not in conflict
with the powers associated with the other branches. The typical division of branches is into a legislature,
an executive, and a judiciary. It can be contrasted with the fusion of powers in a parliamentary
system where the executive and legislature (and sometimes parts of the judiciary) are unified.

Separation of powers, therefore, refers to the division of responsibilities into distinct branches to limit
any one branch from exercising the core functions of another. The intent is to prevent the concentration of
power and provide for checks and balances.

Definition

A fundamental principle of the United States government, whereby powers and responsibilities are
divided among the legislative branch, executive branch, and judicial branch. The officials of each branch
are selected by different procedures and serve different terms of office; each branch may choose to block
action of the other branches through the system of checks and balances. The framers of
1 http://www.legalservicesindia.com/article/article/separation-of-power-in-india-&-usa-483-
1.html

2 This latter refers specifically to the separation of powers into three branches of government: legislative,
executive and judicial.

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the Constitution designed this system to ensure that no one branch would accumulate too much power
and that issues of public policy and welfare would be given comprehensive consideration before any
action was taken.3

History

The origins of the principle of the separation of powers can be traced back as far as ancient Greece. It
was made popular much later by French philosopher Charles de Montesquieu in 1748 in his
work L'Esprit des Lois (the Spirit of the Laws). He wrote that a nation's freedom depended on the three
powers of governancelegislative, executive and judicialeach having their own separate institution.
This principle has been widely used in the development of many democracies since that time.4

3 http://www.dictionary.com/browse/separation-of-powers

4 http://www.peo.gov.au/learning/fact-sheets/separation-of-powers.html

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Chapter 2

Separation of Powers

The term "trias politica" or "separation of powers" was coined by Charles-Louis de Secondat, baron de
La Brde et de Montesquieu, an 18th century French social and political philosopher. His
publication, Spirit of the Laws, is considered one of the great works in the history of political theory and
jurisprudence, and it inspired the Declaration of the Rights of Man and the Constitution of the United
States. Under his model, the political authority of the state is divided into legislative, executive and
judicial powers. He asserted that, to most effectively promote liberty, these three powers must be separate
and acting independently.

Separation of powers, therefore, refers to the division of government responsibilities into distinct
branches to limit any one branch from exercising the core functions of another. The intent is to prevent
the concentration of power and provide for checks and balances.

The traditional characterizations of the powers of the branches of American government are:-

The legislative branch is responsible for enacting the laws of the state and appropriating the
money necessary to operate the government.

The executive branch is responsible for implementing and administering the public policy enacted
and funded by the legislative branch.

The judicial branch is responsible for interpreting the constitution and laws and applying their
interpretations to controversies brought before it.

Forty state constitutions specify that government be divided into three branches: legislative, executive
and judicial. California illustrates this approach; "The powers of state government are legislative,
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executive, and judicial. Persons charged with the exercise of one power may not exercise either of the
others except as permitted by this Constitution."

While separation of powers is key to the workings of American government, no democratic system exists
with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers
and responsibilities intentionally overlap; they are too complex and interrelated to be neatly
compartmentalized. As a result, there is an inherent measure of competition and conflict among the
branches of government. Throughout American history, there also has been an ebb and flow of
preeminence among the governmental branches. Such experiences suggest that where power resides is
part of an evolutionary process.

This Web page provides resources for legislators and staff to use in addressing separation of powers
issues. It organizes them into broad categories and links to a diverse set of resources to illustrate how the
doctrine applies to specific issues under each category. The resources include law review articles, court
cases and legislative reports.5

Montesquieus Doctrine:-

Though the doctrine of Seperation of Power is traceable to Aristotle but the writings of Locke and
Montesquieu gave it a base on which modern attempts to distinguish between legislative, executive and
judicial power is grounded. Locke distinguished between what he called:

1. Discontinuous legislative power

2. Continuous executive power;

3. 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
5 http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-an-overview.aspx

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affairs. Montesquieu, a French scholar, found that concentration of power in one person or a group of
persons results in tyranny. And therefore for decentralization of power to check arbitrariness, he felt the
need for vesting the governmental power in three different organs, the legislature, the executive, and the
judiciary. The principle implies that each organ should be independent of the other and that no organ
should perform functions that belong to the other.

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Chapter - 3

Separation of Power in India

Parliament Legislative

Prime Minister, Cabinet, Government Departments & Civil Service Executive

Supreme Court Judicial

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 Presidents 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 Punjab6, 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, 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

6 1967 AIR 1643, 1967 SCR (2) 762

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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.

Separation of Power in United States

In the United States Constitution, Article 1 Section I gives Congress only those "legislative powers herein
granted" and proceeds to list those permissible actions in Article I Section 8, while Section 9 lists actions
that are prohibited for Congress. The vesting clause in Article II places no limits on the Executive branch,
simply stating that, "The Executive Power shall be vested in a President of the United States of
America."7 On the basis of this theory, the Supreme Courts was not given power to decide political
questions so that there was not interference in the exercise of power of the executive branch of
government. Also overriding power of judicial review is not given to the Supreme Court. The President
interferes with the exercise of powers by the Congress through his veto power. He also exercises the law-
making power in exercise of his treaty-making power. He also interferes in the functioning of the
Supreme Court by appointing judges.

The judiciary interferes with the powers of the Congress and the President through the exercise of its
power of judicial review. It can be said that the Supreme Court has made more amendments to the
American Constitution than the Congress. To prevent one branch from becoming supreme, protect the
"opulent minority" from the majority, and to induce the branches to cooperate, governance systems that
employ a separation of powers need a way to balance each of the branches. Typically this was
accomplished through a system of "checks and balances", the origin of which, like separation of powers
itself, is specifically credited to Montesquieu. Checks and balances allow for a system based regulation
that allows one branch to limit another, such as the power of Congress to alter the composition and
jurisdiction of the federal courts. The Supreme Court holds "The judicial Power" according to Article III,
and it established the implication of judicial review in Marbury v. Madison under the Marshall
court.8 The federal government refers to the branches as "branches of government", while some systems
use "government" to describe the executive. The Executive branch has attempted to claim power arguing

7 "Constitution of the United States". Archives.gov. 2000-09-15. Retrieved 2013-05-05.

8 Madison, James. (8 February 1788) "The Structure of the Government Must Furnish the Proper Checks and
Balances Between the Different Departments" The Federalist Papers No. 51

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for separation of powers to include being the Commander in Chief of a standing army since the American
Civil War, executive orders, emergency powers and security classifications since World War II, national
security, signing statements, and the scope of the unitary executive.9

9 http://byjus.com/free-ias-prep/separation-power-indian-constitution

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Conclusion

It was a wonderful and learning experience for me while working on this project. This project took me
through the various phases on project Separation of Power. The joy of working and the thrill involved
while tackling the various problems and challenges gave me a feel of Separation of Power. Although in
the constitution of India there is no express separation of powers, it is clear that a legislature is created by
the constitution and detailed provisions are made for making that legislature pass laws. Does it not imply
that unless it can be gathered from other provisions of the constitution, other bodies-executive or judicial-
are not intended to discharge legislative functions. In essence they imported the modern doctrine of
separation of powers. While dealing with the application of this doctrine, it is quintessential to mention
the relevant cases which clarify the situation further.

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Bibliography

The following book is used in the completion of this project-

Jain, M.P. (2010). Indian Constitutional Law. LexisNexis Butterworths Wadhwa Nagpur.
p. 921. ISBN 978-81-8038-621-3.

The following statue is also used in the completion of this project-

THE CONSTITUTION OF INDIA, 1950

And also the following websites were consulted for relevant materials:-

WWW.INDIANKANOON.ORG

WWW.WESTLAWINDIA.COM

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