Doctrine Of Separation Of Power Analysis

INTERNAL ASSIGNMENT- I
ADMINISTRATIVE LAW

Critical Essay on

“Application of Doctrine of Separation of Power in India”

SUBMITTED BY:
AISHWARYA AMAR
III year, BBA-LLB
PRN 13010124213

A. INTRODUCTION & HISTORY
Locke and Montesquieu derived the content of the Doctrine of Separation of Power from the development in the British Constitutional history of the early 18th Century. In England after a long war between Parliament and the King they saw the triumph of the Parliament in 1688 which gave parliament legislative supremacy culminating in the power of Bill of Rights. This led ultimately to recognition by the King of legislative and tax powers of Parliament and the judicial powers of the Court. At that time, the King exercised executive

However, the president may act in a legislative capacity under certain circumstances as provided by Article 123(1). He may issue Ordinances at any time, except when both Houses of Parliament are in Session, if he is satisfied about the need for the same. Even during the proclamation of emergency due to failure of Constitutional Machinery, under Article 357, he may pass any law or order to the rectify the situation. He also possess the power to adapt any Law in country by making such adaptations and modifications, whether by way of repeal or amendment as may be necessary for the purpose or bringing the provisions of such Law into accord with the provisions of the Constitution. This is provided in Article 372 and 372-A of the

A rigid separation of powers as under the American or Australian Constitution does not apply to India. However, the Court held that though the constituent power is separate from the separation of powers, to implant the theory of basic structure as developed in the case of Kesavanada Bharati v State of Kerala on the ordinary legislative powers will be encroachment on the theory of separation of powers.

In Ram Krishna Dalmia v. Justice Tendolkar that even there is a lack of an express provision highlighting the separation of powers, it is implicit in the provisions of the Constitution itself. This was further upheld in the case of Jayanti Lal Amrit Lal v. S.M. Ram. Despite this, it has been stated that Legislature cannot delegate its function of laying down policies and must provide for a standard to guide officials of the Executive.
It has finally been agreed that a complete and virtual separation of powers is not possible as the legislature cannot foresee every situation to which its function may extend. Thus it may delegate its functions to the executive, barring the essential legislative functions. Excessive delegated legislation is thus