Separation of Power

• Originator- Montesquieu- book- ‘Espirit des lois’ (The

spirit of the Law).
• Meaning- 3 categories of Govt. Function- Leg/Exe/Jud.
• 3 organs of Govt.- Leg/Exe/Jud.
• Theory of SOP- 3 powers of Govt.- free democracy- kept
separate- exercised- separate organs of Govt.
Accordingly:-
• Leg- can’t exercise- Exe./Jud.
• Exe- can’t exercise- Leg./Jud.
• Jud- can’t exercise- Leg./Exe.
 Origin
• Ancient origin.
• Origin- traceable to Aristotle.
• Aristotle- book- ‘Politics’- 3 branches of Govt-
deliberative/magisterial/Judicial.
• 16 C Jean Bodin- French Philosopher- first modern writer- demand
SOP.
He argued “if the king were both law maker & judge, then a cruel king
might give cruel sentences”.
• 17 C- John Locke- British Politician-book “two treatises on civil govt.”-
talked- 3 branches of Govt- leg/exe/fed.
• 18 C- Baron de Montesquieu- French Jurist- Ist time- systematic &
scientific formulation to SOP- book ‘The spirit of the Law’ published in
year 1748.
 Meaning
• Acc. To this theory- powers- 3 kinds: Leg/Exe/Jud.
• Each power- vested- separate & distinct organ.
• If all power- or any two- united in same organ/ individual- no
liberty.
• Acc. To Wade & Philips- SOP- mean- 3 different things.
1. Same persons should not form part of more than one of the
three organs of Govt.
2. That one organ of govt. should not control or interfere with
the exercise of function by another organ.
3. That one organ of Govt. should not exercise the functions of
another.
 Aim
• Is to guard against tyrannical & arbitrary powers of
the State.
• Logic- if all power is concentrated in one & same
organ this would give rise to danger that the organ
may enact harsh Laws, execute them in
oppressive/ merciless manner & interpret them in
an arbitrary manner without any external control.
• Supporters- believe- it protects democracy &
prevents tyranny.
 Effect of Doctrine
• Doctrine- influenced- framing- const. of U.S.A. in
1787 & Const. of France in 1789.
• Madison- "The accumulation of all powers,
legislative, executive, and judiciary, in the same
hands, whether of one, a few, or many... may justly
be pronounced the very definition of tyranny.”
• Doctrine- profound effect- minds of framers of
American Const. the concept of SOP- become a
model for the governance of all democracies.
 Criticism
1. Conflicting History- Montesquieu- theory accepted by
British Const.- 18th C.
• Reality- no SOP under Const. of England.
• Observation- Donoughmore Committee- “In British
Constitution there was no such thing as the absolute
separation of Legislative, Executive, Judicial powers.”
2. Division of Functions- believed- 3 functions of Govt.
namely Leg./Jud./Exe- divisible from each other.
• Reality- not possible- no watertight compartments.
There is over-lapping with each other.
 Criticism
3. Practical Difficulties in its acceptance- impossible
to concentrate power of one kind in organ only.
• Legislature- not a law making body but to keep a
check on Exe. If performing leg. Function.
• Judiciary- not to perform judicial function but also
has rule making power.
4. Difficulty to observe in Welfare State- modern
State- solve many complex social political &
economic problems of country.
 Criticism
5. Organic Separation- Modern Practice- theory of SOP-
distinction- Essential & Incidental powers.
• One organ of Govt.- can’t encroach upon essential functions
belonging to another organ but may exercise some
incidental functions.
• Doctrine in strict sense- undesirable & impracticable.
• Not fully accepted in any country of world.
• Goal of Doctrine- “a govt. of law rather than of official will
or whim.”
• Judiciary must be independent & separate from remaining
two organs of Govt. i.e. Legislature & Executive.
 SOP in India
• Parliamentary form of Govt.
• Executive- imp. Part of Legislature.
• Doctrine of SOP- not followed strictly.
• No constitutional status.
• In India- Doctrine- not followed with rigidity but essential
functions- sufficiently differentiated.
• Believed- one organ of state- will not perform function of
another organ of the State.
• Every organ- essential functions i.e.- legislature must legislate,
executive must execute & Judiciary must adjudicate.
• Functional over-lapping permissible- const. limits.
 Different Articles
A. 53(1)- Executive power- union- vested in
President- nominal Exe. Head.
• Real executive power- vested in council of
Ministers with P.M at head.
A. 123- President- leg. Power- ordinance during
recess of Parliament
A. 145- S.C.- powers to provide rules/ regulations-
judicial Functions. To that extent- performs
leg. Functions.
 Conclusion
• 3 organs- not separate.
• Doctrine of SOP- not strictly operate.
• Indian Const.- not provided- rigid doctrine- but
has provided for doctrine of “ Checks &
Balances” – one organ can keep watch on other.
• Admin. Law & SOP- go hand in hand.
• Objective- common- that to decrease
concentration of Power in one hand & to ensure
there is no arbitrary use of power.
 Case Law
Directorate of Education v. Educom Datamatics Ltd.

Facts: Directorate of Education – invited-open tender-

prescribed eligibility criteria in gen. terms & conditions-
tender document- leasing, supplying, installation,
commissioning of computer system- Govt. schools.

Auth- decision- tender be invited from firms having a

turnover of 20 cr. Over the previous 3 years.

Eligibility condition- challenged.

Held- courts can’t interfere with terms of tender prescribed
by Govt. unless & until policy decision is arbitrary,
discriminatory or malafide.
 Case Laws
Rai Sahib Ram Jawaya v. State of Punjab

 Rai Sahib Ram Jawaya v. State of Punjab

Facts- Punjab Govt.- notification- restriction placed-
petitioner business- printing & selling text books for
schools.
Affects- text book business of Pvt. Publishing houses.
Petitioner- Court- U/A. 32 Const.- grounds-
contravention of FRs- U/A. 19(1)(g) of Const.- State
can’t take decision of trading activities without a
legislative sanction.
 Case Law
Rai Sahib Ram Jawaya v. State of Punjab

Issues:
1. Whether FRs of petitioner was violated or infringed?
2. What is the extent of executive power?
Held- action of Govt.-no infringement U/A. 19(1)(g).
• FRs- not violated- notifications & acts- exe. Govt.-
furtherance of their policy of nationalization of text
books for students.
• By entering into competitions with citizens- State
didn’t infringe their rights.
 Case Law
Rai Sahib Ram Jawaya v. State of Punjab

Observation of Court- exe. Power not defined in const.

• Ordinarily- Exe. Power means- residue of Govt. functions that
remain after legislative & judicial functions are taken away.
• U/A. 53(1)- exe. Power of union- president but U/A. 74-
council of ministers with P.M as head- aid & advise-President-
exercise of his functions.
• Finally- observed- Indian Const.- not recognized – SOP-
absolute rigidity but different branches of Govt.- sufficiently
differentiated & it can be very well said that our Const.
doesn’t contemplate assumption of all power by one organ or
part of the functions that essentially belong to another.
 Case Law
Asif Hameed v. State of J&K

Facts- issue related to setting aside- admission of

successful candidates to M.B.B.S/B.D.S. course by
J&K H.C.- ground- selection procedure was not
conducted as per the direction given by same H.C.
• H.C.- directed- State Govt.-entrust- selection process
of two medical colleges- statutory independent body
which was to be free from exe. Influence.
• No body was constituted- selection process- court set
aside- admission of successful candidates.
• Appeal filed against judgment of J&K H.C.
 Case Law
Asif Hameed v. State of J&K

Issues:
1. Whether the H.C. has the competence to
issue directions to the State Govt. to
constitute “Statutory Body” for selection
process of Medical courses.
2. Whether the selection made by any other
auth. is invalid on that ground alone?
 Case Law
Asif Hameed v. State of J&K

• SOP- not recognized under the const., it makers- defined functions of

various organs of State.
• Leg./Exe./Jud- function- own spheres- const.
• No encroachment upon functions of other organ.
• Judicial Review- powerful weapon- restrain unconst. Exercise of power
by Leg./Exe.
• Judicial Review- admin. Action- court not an appellate auth.
• Const.- not permit- court- direct/advise- executive in matters of policy.
• Court- Held- entirely a matter of exe. Branch of Govt. to decide
whether or not to introduce any particular legislation but the court
can’t mandate the exe. Or any member of legislature to initiate
legislation.
 Case Law
Asif Hameed v. State of J&K

• Court further Held- H.C direction constituting “

Statutory Independent Body” means- State leg.- enact a
law.
• Const.- laid detailed procedure for legislature to act.
• Leg- Supreme- own sphere under const.
• Leg.- consider- when & in What respect- S.M- laws are
to be enacted.
• No directions- can be issued to legislature- by Courts.
• H.C.- patently in error in issuing Directions.
• Judgment of H.C- set aside.
 Case Law
Golak Nath v. State of Punjab
• Const.- created- 3 major- instruments of
Power- Leg./Exe./Jud.
• Demarcates their jurisdiction minutely &
expects them to exercise their respective
powers without over-stepping their limits.
• They should function within the spheres
allotted to them.