Development:

— Idea of Separation of Power goes to early works Aristotle,

Locke and at large to Montesquieu
— It is argued that Locke and Montesquieu derived this
concept observing British constitutional development
during early 18th century. Parliamentary supremacy
through Bill of Rights 1688 lead to recognition of legislative
powers to the Parliament and judicial powers to the courts.
— Blackstone’s Commentaries (1765) “In all tyrannical
Governments…the right of making and of enforcing the
laws is vested in one and the same man, or the same body
of men; and wheresoever these two powers are united
together there can be no liberty” (O. Hood Phillips and
Jackson in ‘Constitutional and Administrative law, Eight
edition’ argued that this principle was applied in the US
Constitution
— ‘A society where rights are not secured and separation of
powers established has no constitution’--- Article 16 of the
Declaration of Rights of Man (1789)
— As rule of law hampered development of administrative law
in England, so did Separation of Power for the development
of administrative law in the US– MP Jaine and SN Jaine,
Principles of Administrative Law, 6th edition. For e.g.
delegated legislation and statutory commission with the
function of legislation, administration and adjudication
along with powers of investigation and prosecution etc.
— In the face of new demands such as socio-economic
interests of the people, new institutions and procedures
have developed. Hence, diluting the pure doctrine of
‘Separation of Power’---- MP Jaine and SN Jaine, Principles
of Administrative Law, 6th edition, citing Davis,
Administrative Law Treatise 64 (1958),
— Montesquieu 1748: ‘When the legislative and executive
powers are united in the same person, there can be no
liberty. If the judicial power is not separated from the
legislative and executive powers again there is no liberty. If
judicial power is joined with legislative power the life and
liberty of the subject would be exposed to arbitrary control
for the judge would then be the legislature. Secondly if the
judicial and executive functions were joined the judges
might misbehave.ʹ
For e.g. power to arrest vs. power to hear the case of an
accused
— The doctrine of Separation of Power is different in UK and
Nepal where parliamentary form of government operates
requiring co-ordination of the executive and the
legislature than in Presidential form of government like
U.S.
— “There are three aspects to Montesquieu’s version of the
separation of powers. Firstly, separation of function, secondly
separation of personnel and thirdly checks and balances.”----John
Alder, General Principles of Constitution and Administrative Law
— Separation of function: However, strict separation of function is
not practical. Delegated legislation to executive branches of
government, executive proposes even primary legislations at
times, judges makes laws in common law system etc.
— Separation of Person: Particularly in U.S., President forms the
executive and congress forms legislature. Both are elected
separately and same person cannot be the members of both. In
general, members of judiciary cannot be members of legislature
and executive.
— Check and balance: It’s somewhat closer to the idea of rule of law.
The courts have absolute power to interpret the Statutes; it can
nullify decision made by executive, executive can be impeached
in parliament, executive can veto laws passed by parliament.
“The theory of Separation of Power signifies three
formulations of structural classification of governmental
powers:
1. The same person should not form part of more than one
of the three organs of the government. For example,
ministers should not sit in Parliament.
2. One organ of the government should not interfere with
any other organ of the government
3. One organ of the government should not exercise the
functions assigned to any other organ.”
I.P. Massey, Administrative Law, Seventh Edition

(Note: Concept of Check and Balance lacks here)

Separation of Power vs. Administrative Law ????
— In U.S., people criticized the development of the
Administrative law saying that it goes against the notion
of separation of power. A separate committee was formed
to see this challenge i.e. Attorney General’s Committee.
Then only Administrative Procedure Act 1946 was passed.
Challenge before this committee: How to reconcile the
delegation of legislative and judicial powers to
administrative agencies with the doctrine of Separation of
Power. It was figured out that what administrative agencies
do are not purely legal or judicial, it is quasi-legal and quasi-
judicial
— To a larger extent, these criticisms are valid too. For e.g.
Anti-Corruption Act 2059’s Section 2(g) and 30 and, Local
Governance Act 2028’s Section 39
Check and Legislative Branch can Executive Branch can Judicial Branch
Balance in US be checked by be checked by can be checked by
Legislative ---- • Can overrule veto(2/3 • Can create
branch can majority) inferior courts
check • Controls by Statute • Can add new
• Can impeach judges
President • Senate approval
• Senate approval of of appointments
appointments and • Impeachment of
treaties Judges
Executive • Can veto legislation President appoint
branch can • Can convene special judges
check session
• Vice president
presides over Senate
and votes to break ties
Judicial branch • Judicial review of • Judicial review of
can check legislation Presidential actions
• Chief Justice presides • Power to issues
over Senate during warrants
proceedings to • Chief Justice presides Source: Lowi et all,
impeach president over impeachment to American
president Government, 9th edi
— Does Separation of Power really exist in England as per I.P
Massey:
1. King, though as an Executive head, is an integral part of
the legislature and his ministers are also members of
House of Parliament
2. Lord Chancellor is at the same time a member of the
House of Lords, member of government and senior most
member of the Judiciary
3. Judiciary can nullify acts or decisions made by Executive
or Legislature through Judicial Review
4. House of Common controls the Executive
5. Judges of superior courts can be removed on address
from both Houses of Parliament
6. Legislative and adjudicatory powers are being
increasingly delegated to Executive.
— Duport Steel v. Sirs 1990: ‘The British constitution, though largely
unwritten, is firmly based upon the separation of powers’
— Rv HM Treasury 1985: “Although the UK has no written
constitution, it is a constitutional convention of the highest
importance that the legislature and the judicature are separate
and independent of one another…”
— Indira Nehru Gandhi v Raj Narain 1975: “Political usefulness of
the doctrine of separation of powers is now widely recognized…”
No Constitution can survive without a conscious adherence to its
fine check and balances. “Just as courts ought not to enter into
problems entwined in the ‘political thicket’, Parliament must also
respect the preserve of the courts. The principle of separation of
powers is a principle of restraint which ‘has in it the percept,
innate in prudence of self-preservation…that discretion is the
better part of valour.”
— Part 4(a): President and Vice-President
— Part 5: Executive
— Part 6: Legislature. Legislative Privilege at Art. 56 and 56(6)
— Part 10: Judiciary
Check and Balance:
— Article 36(A)(2): President’s power checked by the
Constitution
— Article 36(E)(b): President checked by Constituent Assembly
— Article 37(6): Accountability of Prime Minister and
Ministers towards Parliament
— Article 37(7)(A1): Impeachment over Prime Minister at
Parliament
— Article 60: Restriction over Parliament
— Article 107: Restriction over Executive and Parliamentary
actions through Judicial Review
— Article 102(4): Supreme Court has final power over legal
uncertainties that either exits at Parliament or Executive
— Article 105(5): Impeachment of Chief Justice and other
Justices at the Supreme Court
— Article 106(6): Restriction over Chief Justice and other
Justices to work on non-judicial matters
Few more issues with Judiciary:
— Article 115: Duty of Executive and its offices to assist
Judiciary
— Article 101(2): Additional court, judicial office or tribunals
can be established
— Most cases covering Judicial Review aspects
— Adv Chandra Kant Gyawali and others v. Cabinet
Secretariat, 2061 (pg. 466 and 467)
— Diwakar Sharma and other v. Chawi Nepal and other,
2059 (553 and 554)
— Balkrishna Mainali v. Cabinet Secretariat, 2058 (335 and
336)
— Adv. RaviRaj Bhandari v. Taranath RanaBhat and others,
2062: Until the discussions held at Parliament affects the
proper functioning of Judiciary, it cannot be said as a
Contempt of Court. Also, clearly said that no question can
be raised in terms of Parliamentary Privileges
— “cg'lrt sfo{ jf e|i6frf/ lgoGq0fsf ;DjGwdf clVtof/ b'?kof]u cg';Gwfg
cfof]u ;+ljwfgtM dxTjk"0f{ ;+/rgf ePjf6 clVtof/ b'?kof]u cg';Gwfg
cfof]unfO{ ;+lawfgn] tf]s]sf]] lhDd]jf/L ;+j}wflgs Joj:yf oyfjt /x];Dd ;+j}
wflgs Joj:yf cg';/0f ug'{ g} ;+ljwfg;Ddt x'g hfG5 . s'g} sf/0f b]vfP/ ;
+j}wflgs c+unfO{ k|bfg ul/Psf] sfd st{Jo / clwsf/df k|ToIf,ck|ToIf ?kdf
k|efj kfg]{, cltqmd0f x'g] of ;+a}wflgs lgsfo k|efljt jf k|efjlxg cj:yfdf
k'Ug] sfo{af6 ;+a}wflgs hu sdhf]/ dfq xf]Og vnjlng klg k'Ub5, ;
+lawfgjfb / ;+lawfgsf] ljsf;df ;d]t cj/f]w k'Ug hfG5 .”
— Rajiv Parajuli v. Royal Commission for Control of Corruption et all,
2008
— GyanRaj Rai v. Government of Nepal, 2058: Matters relating to
diplomatic relationship and bilateral agreements fall within
jurisdiction of the executive. Therefore, court does not have
jurisdiction over disputes relating to such matters.
Separation of Power and Check and Balance
and Administrative Law:
1.Check on the abuse of power or to prevent administrative
arbitrariness. The abuse of power will be limited by disturbing
different functions to executive, legislature and judiciary so as
to prevent government organs from wrongdoing.
2.Separation of power’s “…object is the preservation of political
safeguards against the capricious exercise of power; and
incidentally, it lays down the broad lines of an efficient
division of functions. Its logic is the logic of polarity rather
than strict classification…the great end of the theory is, by
dispersing in some measure the centres of authority, to
prevent absolutism.”--- MP Jaine and SN Jaine, Principles of
Administrative Law, 6th edition citing Jafe and Nathanson,
Administrative Law: Cases and Materials 1961
3. Water-tight separation of powers cannot be maintained.
The logic behind the doctrine of separation of powers is still
valid so that no absolute power is exercised infringing upon
rights of individuals.
4. There should be mutual restraint upon exercise of the
power between three organs. This is where the idea of check
and balance comes into being.
5. Administrative process is not anti-thesis of separation of
powers and check and balance has supported administrative
process
6. Check and Balance is a mechanism by which each branch
of the government is able to participate/can participate to
influence the activities of another branch.
7. Division of administrative functions (all three functions) to
different agencies are effective/are required in modern day.