ALIGARH MUSLIM UNIVERSITY

CENTRE JANGIPUR MURSHIDABAD

Session: 2019-20

TOPIC

SEPARATION OF POWER AND ITS RELEVANCY

SUBJECT

ADMINISTRATIVE LAW

Submitted to Submitted by
Dr. Masood Ahmad MD. Tausif Raza
Assistant Professor, Faculty of Law B.A.LL.B.(Hons.) 5th Semester
AMU, Centre Jangipur Murshidabad 17 BALLB-17
GI-6429
 CERTIFICATE

This is to certify that Md. Tausif Raza of BALLB Vth semester of Aligarh Muslim University
Centre Murshidabad has completed his assignment of Law of Evidence on the topic
“SEPARATION OF POWER AND ITS RELEVANCY ” under guidance of Dr. Masood Ahmad.

Date:
Sign:
 ACKNOWLEDGEMENTS

I Md. Tausif Raza would like to express my special thanks of gratitude to my teacher
Dr. Masood Ahmad ., who gave me the golden opportunity to do this wonderful assignment on
the topic “ SEPARATION OF POWER AND ITS RELEVANCY” which also helped me in doing a lot of
Research and I came to know about so many new things I am really thankful to him.
Secondly I would also like to thank my friends who helped me a lot in finalizing this project.
Last but not the least I would like to thank almighty for the constant blessing on me.

Md. Tausif Raza

 CONTENTS

1. Introduction
2. Historical Background
3. Montesquieu Theory
4. Position in India
5. Principle of Checks and Balances
6. The relevance of separation of powers in the Modern Era
7. Separation of Powers: Indian Perspective
8. Separation of Powers: A Barrier to Administrative Law
9. Theory of Separation of Powers: Criticism:
10. Judicial Opinion on the Doctrine of Separation of Powers
11. Conclusion
12. Bibliography
1. Introduction
“Power corrupts and absolute Power tends to corrupt absolutely.”
The separation of powers is based on the principle of trias politica. The Doctrine of Separation of
Power is the forerunner to all the constitutions of the world, which came into existence since the
days of the “Magna Carta”. Though Montesquieu was under the erroneous impression that the
foundations of the British constitution lay in the principle of Separation of Power, it found its
genesis in the American Constitution. Montesquieu had a feeling that it would be a panacea to
good governance but it had its own drawbacks. A complete Separation of power without
adequate checks and balances would have nullified any constitution. It was only with this in
mind the founding fathers of various constitutions have accepted this theory with modifications
to make it relevant to the changing times.[i]
The Doctrine of “Separation of Powers”, a vintage product of scientific political philosophy is
closely connected with the concept of “judicial activism”. “Separation of Powers” is embedded
in the Indian Constitutional set up as one of its basic features. In India, the fountain-head of
power is the Constitution. The sovereign power has been distributed among the three-wings:
 Legislature
 Executive
 Judiciary
The doctrine of separation of powers envisages a tripartite system. Powers are delegated by the
Constitution to the three organs and delineating the jurisdiction of each.[ii]

The position in India is that the doctrine of separation of powers has not been accorded
constitutional status. In the Constituent Assembly, there was a proposal to incorporate this
doctrine in the Constitution but it was knowingly not accepted and as such dropped. Apart from
the directive principles laid down in Article 50 which enjoins separation of judiciary from the
executive, the constitutional scheme does not embody any formalistic and dogmatic division of
powers.
2. Historical Background

The tripartite model of governance has its origin in Ancient Greece and Rome. Though the
doctrine is traceable to Aristotle the writings of Locke and Montesquieu gave it a base on which
modern attempts to distinguish between legislative, executive and judicial power is grounded.
The doctrine may be traced to ancient and medieval theories of mixed government, which argued
that the processes of government should involve the different elements in society such as
monarchic, aristocratic, and democratic interests. The first modern formulation of the doctrine
was that of the French writer Montesquieu in De l’esprit des lois (1748), although the English
philosopher John Locke had earlier argued that legislative power should be divided between king
and Parliament.[iv]
Locke distinguished between what he called:
 Discontinuous legislative power
 Continuous executive power
 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. Montesquieu’s division of power included a general legislative power
and two kinds of executive powers; an executive power in the nature of Locke’s ‘federative
power’ and a ‘civil law’ executive power including executive and judicial power. [v]
It was Montesquieu who for the first time gave it a systematic and scientific formulation in his
book ‘Esprit des Lois (The Spirit of the laws) published in the year 1748.[vi] Locke and
Montesquieu derived the contents of this doctrine from the developments in the British
constitutional history of the 18th Century. In England after a long war between the Parliament
and the King, they saw the triumph of Parliament in 1688, which gave Parliament legislative
supremacy culminating in the passage of Bill of Rights. This led ultimately to a recognition by
the King of legislative and tax powers of the Parliament and the judicial powers of the courts. At
that time, the King exercised executive powers, Parliament exercised legislative powers and the
courts exercised judicial powers, though later on England did not stick to this structural
classification of functions and changed to the parliamentary form of government.[vii]
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.[viii]
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. England follows the
parliamentary form of government where the crown is only a titular head. The mere existence of
the cabinet system negates the doctrine of separation of power in England as the executive
represented by the cabinet remains in power at the sweet will of the parliament.
In India, under the Indian constitution, there is an express provision under Article 50 of the
Constitution which clearly states that the state should take necessary steps to separate the
judiciary from the executive i.e. independence of the judiciary should be maintained.
3. Montesquieu’s Theory

According to this theory, powers are of three kinds: Legislative, executive and judicial and that
each of these powers should be vested in a separate and distinct organ, for if all these powers, or
any two of them, are united in the same organ or individual, there can be no liberty. If, for
instance, legislative and executive powers unite, there is apprehension that the organ concerned
may enact tyrannical laws and execute them in a tyrannical manner. Again, there can be no
liberty if the judicial power is not separated from the legislative and the executive. Where it
joined the legislative, 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.[ix]
Writing in 1748, Montesquieu said:
“When the legislative and the executive powers are united in the same person or in the same
body of magistrates, there can be no liberty, because apprehensions may arise, lest the same
monarch or senate should exact tyrannical laws, to execute them in a tyrannical manner. Again
there is no liberty if the judicial power be not separated from the legislative and the executive.
Where it joined with the legislative, the life and the liberty of the subject would be exposed to
arbitrary control; for the judge would be then a legislator. Where it joined to the executive
power, the judge might behave with violence and oppression.

In his book The Spirit of The Laws’ (1748), Montesquieu enunciated and explained his theory of
Separation of Powers. He wrote,

(1) If the legislative and executive powers are combined in the same organ, the liberty of the
people gets jeopardized because it leads to tyrannical exercise of these two powers.

(2) If the judicial and legislative powers are combined in the same organ, the interpretation of
laws becomes meaningless because in this case the lawmaker also acts as the law interpreter and
he never accepts the errors of his laws.

(3) If the judicial power is combined with the executive power and is given to one-person or one
organ, the administration of justice becomes meaningless and faulty because then the police
(Executive) becomes the judge (judiciary).

(4) Finally if all the three legislative, executive and judicial powers are combined and given to
one person or one organ, the concentration of power becomes so big that it virtually ends all
liberty. It establishes despotism of that person or organ.
4. Position in India

In India, the executive is part of the legislature. The President is the head of the executive and
acts on the advice of the Council of Ministers. {Article 53 and 74 (1)}. He can be impeached by
Parliament. Article 56 (1) (b) read with Article 61, Constitution. The Council of Ministers is
collectively responsible to the Lok Sabha {Article 75 (3)} and each minister works during the
pleasure of the President. {Article 75 (2)} If the Council of Ministers loses the confidence of the
House, it has to resign.
Functionally, the President’s or the Governor’s assent is required for all legislation. (Article 111,
200 and 368). The President or the Governor has the power of making ordinances when both
Houses of the legislature is not in session (Article 123 and 212). An ordinance has the same
status as that of a law of the legislature. (AK Roy v Union of India, AIR 1982 SC 710) The
President or the Governor has the power to grant pardon. (Articles 72 and 161) The legislature
performs judicial function while committing for contempt those who defy its orders or commit
breach of privilege (Articles 105 (3) 194 (3) Thus, the executive is dependent on the Legislature
and while it performs some legislative functions such as subordinate, it also performs some
executive functions such as those required for maintaining order in the house.
There is, however, a considerable institutional separation between the judiciary and the other
organs of the government. (See Art 50)
The Judges of the Supreme Court are appointed by the President in consultation with the Chief
justice of India and such of the judges of the Supreme Court and the High Court’s as he may
deem necessary for the purpose. (Article 124 (2))
The Judges of the High Court are appointed by the President after consultation with the Chief
Justice of India, the Governor of the state, and, in the case of appointment of a judge other than
the Chief justice, the Chief Justice of the High Court. (Article 217 (1))
It has now been held that in making such appointments, the opinion of the Chief justice of India
shall have primacy. (Supreme Court Advocates on Record Association case) The judges of the
High Court and the judges of the Supreme Court cannot be removed except for misconduct or
incapacity and unless an address supported by two-thirds of the members and an absolute
majority of the total membership of the House is passed in each House of Parliament and
presented to the President. {Article 124 (3)} An impeachment motion was brought against a
judge of the Supreme court, Justice Ramaswami, but it failed to receive the support of the
prescribed number of members of Parliament. The salaries payable to the judges are provided in
the Constitution or can be laid down by a law made by Parliament. Article 125 (1) and Art 221
(1).
Every judge shall be entitled to such privileges and allowances and to such rights in respect of
absence and pension, as may from time to time be determined by or under any law made by
Parliament and until so determined, to such privileges, allowance and rights as are specified in
the Second Schedule. Neither the privileges nor the allowance nor his rights in respect of leave
of absence or pension shall be varied to his disadvantage after his appointment.
Appointments of persons to be, and the posting and promotion of, district judges in any state
shall be made by the Governor of the State in consultation with the High Court exercising
jurisdiction in relation to such state. (Article 233) The control over the subordinate courts is
vested in the acts of the Legislature as well as the executive. The Supreme Court has the power
to make rules (Article 145) and exercises administrative control over its staff. The judiciary has
the power to enforce and interpret laws and if they are found in violation of any provision of the
Constitution, it can declare them unconstitutional and therefore, void. It can declare the executive
action void if it is found against any provisions of the Constitution. Article 50 provides that the
State shall take steps to separate the judiciary from the executive.
Thus, the three organs of the Government (i.e. the Executive, the Legislature and the Judiciary)
are not separate. Actually, the complete demarcation of the functions of these organs of the
Government is not possible.
The Constitution of India does not recognize the doctrine of separation of power in its absolute
rigidity, but the functions of the three organs of the government have been sufficiently
differentiated. (Ram Jawayya Kapoor and ors. v. State of Punjab, AIR 1955 SC 549) None of the
three organs of the Government can take over the functions assigned to the other organs.
(Kesavananda Bharti v. State of Kerala; AIR 1973 SC 1461, Asif Hameed v. State of J&K; 1989
AIR, SC 1899)
In State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court has held that
the judiciary must recognize the fundamental nature and importance of the legislative process
and must accord due regard and deference to it. The Legislative and Executive are also expected
to show due regard and deference to the judiciary. The Constitution of India recognizes and gives
effect to the concept of equality between the three organs of the Government. The concept of
checks and balance is inherent in the scheme
5. Principle of Checks and Balances

The doctrine of separations of powers may be traced back to an earlier theory known as the
theory of mixed government from which it has been evolved. That theory is of great antiquity
and was adumbrated in the writings of Polybius, a great historian who was captured by the
Romans in 167 BC and kept in Rome as a Political hostage for 17 years in his history of Rome.
Polybius explained the reasons for the exceptional stability of the Roman Government which
enabled Rome to establish a worldwide empire. He advanced the theory that the powers of Rome
stemmed from her mixed government. Unmixed systems of government that is the three primary
forms of government namely, Monarchy, Aristocracy, and Democracy – were considered by
Polybius as inherently unstable and liable to rapid degeneration.
The Roman constitutions counteracted that instability and tendency to degeneration by a happy
mixture of principles drawn from all the three primary forms of government. The consuls, the
Senate and the popular Assemblies exemplified the monarchical, the aristocratic and the
democratic principles respectively.
The powers of Government were distributed between them in such a way that each checked and
was checked by the others so that an equipoise or equilibrium was achieved which imparted a
remarkable stability to the constitutional structure. It is from the work of Polybius that political
theorist in the 17th Century evolved that theory of separation of powers and the closely related
theory of Checks and Balances. [xiii]
6. The relevance of separation of powers in the Modern Era

Although, the doctrine of separation of powers does not have the rigid applicability that does not
imply that it has no relevance in the current scenario. The core objective of the doctrine of
separation of powers is to keep checks and balances among the three organs of the government
which is an essential factor to run a government dynamically. The logic behind this doctrine is
not the strict classification rather it is the avoidance of concentration of powers to a specific
person or a body. This theory is not operative in its absolute sense but yes, it is very
advantageous if applied correlatively. Thus, not impenetrable barriers and unalterable frontiers
but mutual curtailment in the exercise of powers by the three organs of the state is the spirit of
the doctrine of separation of powers.
7. Separation of Powers: Indian Perspective

The impending question of how a child witness may be deemed to be mature enough to
understand the question that may be put to him during the trial is a major concern in most
jurisdictions due to the extent of subjectivity involved in this regard. For the same, the “Voir
Dire” test is conducted.The term literally translated to “That which is true”. In this test, the child
witness is made to answer certain questions which are unrelated to the case. Questions of general
details about the child himself such as place of residence, name of school, details of parents etc
may be put to the witness to assess if he is a competent witness or not.

Since there are two challenges to have any other form of objective judgement on the same, this
test is followed. The contentions are that there is a propensity for interested elders tutoring
children so as to sway the testimony in their own favour and that there is no specific age that the
law has or can specify when a child may gain maturity and a rational understanding of the events
around him. The competency of child witnesses is generally determined by courts by observing
whether a child can clearly and rationally provide an account of occurrences and happening of a
particular instance in question in light of his intellectual capacity and comprehensive abilities.

The account of the child must represent accuracy, as far as is determinable by a judge. The judge
must be satisfied with the ability of the child to do so in order to make sure that the child is
competent to testify. This is highly reliant on the discretion of the presiding judge and the onus is
on him to ensure the child answers all the preliminary general questions put to him before he is
subject to cross examinations and procedure of testifying. The test is said to be complete only
when the court is fully satisfied with the ability of the child and only after this can the substantial
questions regarding the case be put to a child witness.

The Supreme Court has also stated that the child who wishes to be a witness must be able to
differentiate between right and wrong, so as to be a competent witness. If a contrary fact is
discernible from the cross examination or the answers of the child otherwise, he may not be a
competent witness
8. Separation of Powers: A Barrier to Administrative Law

Despite affirmations by the supreme court in various instances, the terms of section 114 of the
Indian Evidence Act demand certain amount of corroboration of witness testimonies. Given the
challenges and concerns so deeply associated with child witness testimonies, the threshold for
corroboration is slightly higher in this regard. This is a larger part of how child witness
testimonies must be scrutinized harder than other witness testimonies and extra caution must be
used whilst basing convictions on such evidence. If in case a child is able to recall and explain
the details of an occurrence without improvements or embellishments, the threshold for
corroborating the said evidence is comparatively lower. This is still subject to the tests of rational
understanding of questions and subsequent relevant, truthful and complete responses.

Corroboration will lead to the acceptance of a child witnesses’ testimony. If in case through
further investigation it is found that the child has been tutored, the testimony may not be
completely discarded. The part that has been tutored, as long as it is separable from the rest, may
be the only part of the testimony not relied upon or discarded altogether. Corroboration is
required as an additional assurance of the testimony. Although it isn’t an absolute deciding factor
in terms of admittance; in this aspect, it assists in granting credibility to the same
9. Theory of Separation of Powers: Criticism:

1. Complete Separation is not possible:

The government is a single entity. Its three organs can never be completely separated.
The legislative, executive and judicial functions are interdependent and inter-related
functions and hence cannot be fully separated.

2. Complete Separation is not desirable:

Complete separation of three organs of government is neither possible nor desirable. It is
not desirable because without among mutual coordination these cannot carry out its
functions effectively and efficiently. Complete separation of powers can seriously limit
the unity and coordination needed by the three organs.

3. Impracticable in itself:
We cannot fully use separation of powers. The function of law-making cannot be
entrusted only to the legislature. The needs of our times have made it essential to provide
for law-making by the executive under the system of delegated legislation. Likewise, no
one can or should prevent law-making by the judges in the form of case law and equity
law.

4. Unhistorical:
The theory of Separation of Powers is unhistorical since it has never been operative in
England. While formulating and advocating this theory, Montesquieu advocated that it
was at work in England. Under the British parliamentary system of government, there
was and continues to be a close relationship between the British Parliament and the
Cabinet. Even there is no separation of judiciary from legislature in so far the British
House of Lords acts as the highest court of appeals. The British Constitution has never
been based on the theory separation of powers.
5. The three Organs of Government are not equal:
The Theory of Separation of Powers wrongly assumes the equality of all the three organs
of the government. The legislature of the state is always regarded as the primary organ of
government. The work of the government begins by law-making. However, in actual
practice the executive acts the most powerful organ of the government. The judiciary is
the weakest of the three organs, yet it is always held in high esteem by the people. Hence
the three organs are neither equal nor equally respected.

6. Separation of Powers can lead to deadlocks and inefficiency:

Separation of powers can lead to deadlocks and inefficiency in the working of the
government. It can create a situation in which each organ can get engaged in conflict and
deadlocks with other two organs.

7. Liberty does not depend only upon Separation of Powers:

The critics reject the view that liberty can be safeguarded only when there is a separation
of powers among the three organs of the government. They argue that in the absence of
fundamental rights, independence of judiciary, rule of law, economic equality and a spirit
of democracy, there can be no liberty even when there may be present full separation of
powers.

8. Separation of Functions and not of Powers:

The name ‘Separation of Powers’ is wrong because this theory really advocates a
separation of functions. Power of the government is one whole. It cannot be separated
into three separate parts. It is at the back of the functions of all the three organs of
government.
10. Judicial Opinion on the Doctrine of Separation of Powers
The separation of power there were times where the judiciary has faced tough challenges in
maintaining and preserving the Doctrine of separation of power and it has in the process of
preservation of the above said Doctrine has delivered landmark judgments which clearly talks
about the independence of judiciary as well as the success of judiciary in India for the last six
decades.

The first major judgment by the judiciary in relation to Doctrine of separation of power was in
Ram Jawaya v State of Punjab[xxv].
The court in the above case was of the opinion that the Doctrine of separation of power was not
fully accepted in India. Further, the view of Mukherjea J adds weight to the argument that the
above-said doctrine is not fully accepted in India. He states that: “The Indian constitution has
not indeed recognized the doctrine of separation of powering 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”.

Later in I.C. Golak Nath v State of Punjab[xxvi], Subha Rao, C.J opined that
“The constitution brings into existence different constitutional entitles, namely the union, the
state 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 there limits. They should
function with the spheres allotted to them”
The above opinion of the court clearly states the change in the court’s views pertaining to the
opinion in the case of Ram Jawaya v State of Punjab related to the doctrine of separation of
power.

The came one of the most landmark judgments delivered by the Supreme Court in Keshvananda
Bharti v Union of India the court was of the view that amending power was now subject to the
basic features of the constitution. And hence, any amendment tampering these essential features
will be struck down as unconstitutional. Beg, J. added that separation of powers is a part of the
basic structure of the constitution. None of the three separate organs of the republic can take over
the functions assigned to the other 7. Hence this further confirmed the opinion of the court in
relation to the doctrine of separation of power.
Then in Indira Gandhi Nehru v. Raj Narain, where the dispute regarding P.M. election was
pending before the Supreme Court, opined that adjudication of a specific dispute is a judicial
function which parliament, even under constitutional amending power, cannot exercise i.e. the
parliament does not have the jurisdiction to perform a function which the other organ is
responsible for otherwise there will be chaos as there will be overlapping of the jurisdictions of
the three organs of the state. Also, 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.” So if there is a provision then there should be proper implementation
and this judgment emphasis on that point only.

Also in I.R. Coelho vs. State of Tamil Nadu[xxvii], S.C. took the opinion opined by the
Supreme court in Kesavananda Bharati case pertaining to the doctrine of basic structure and held
that the Ninth Schedule is violative of the above-said doctrine and hence from now on the Ninth
Schedule will be amenable to judicial review which also forms part of the basic structure theory.

From the above few case laws right from Ram Jawaya v state of
Punjab in 1955 to I.R. Coelho v. State of Tamil Nadu in there has been a wide change of opinion
as in the beginning the court was of the opinion that as such there is no Doctrine of Separation of
Power in the constitution of India but then as the passage of time the opinion of the Supreme
Court has also changed and now it does include the above said Doctrine as the basic feature of
the Constitution.
Conclusion

The doctrine of separation of powers must be interpreted in a relative form. In the era of
Liberalization, Privatization and Globalization, separation of power has to be expounded in a
wider perspective. It should not be curb to the principle of restraint or strict classification only
but a group power exercised in the spirit of cooperation, coordination and in the interest of the
welfare of the state. Though this doctrine is unfeasible in its rigid perception nevertheless its
effectiveness lies in the prominence on those checks and balances which are necessary in order
to avert maladroit government and to prevent abuse of powers by the different organs of the
government
 BIBLIOGRAPHY
1. http://www.legalservicesindia.com/article/906/Accomplice-Witness-&-its-admissibility-
as-Evidence.html
2. https://onlinelibrary.wiley.com/doi/abs/10.1002/jip.138
3. https://blog.ipleaders.in/admissibility-child-witness-court-law/
4. https://www.legalbites.in/kinds-of-witnesses-child-witness-dumb-witness-and-hostile-
witness/
5. https://indianlegalsolution.com/minor-as-a-witness-child-witness/
6. https://www.scribd.com/document/331326779/Competency-of-witness
7. http://lawtimesjournal.in/child-witness/
8. https://indiankanoon.org/doc/371095/