民法科学杂志

抽象的

An Analysis of Separation of Power in Relation to Administration Law

Shubhangi Baranwal

The purpose of this paper is to critically analyze the Doctrine of Separation of Power along with the consequence and limitations. The paper attempts to provide constructive understanding of the difficulties faced by the three wings- Legislature, Executive and Judiciary of the government in practice while implementing the provisions of Constitution in letter and spirit. This paper is composed of three main parts; the first part examines the history and essence which includes exploration of the concept of separation of power as it comes as a better alternative of monarchy and its existence as present in the contemporary scenario and then meaning of Doctrine of Separation of Power, here the doctrine will be explained along with its object and development. Also examines the three exponent of this doctrine ,Aristotle - who originates this concept, John Locke –who developed and defined the principle of Separation of Power and Montesquieu- who best known for his thought on Separation of power. In his famous book – “Spirit of Laws”, he formulates this theory and mentions that in free democracy the government should have three main organs Legislature, Executive & Judiciary and the function and power of all these organs must be distinct and separate. The second part examines this doctrines with respect two countries i. e., US and its present status in India as US is the first country which adopt this doctrine of Separation of Power where it’s strictly follows. In India, Separation of Power can be enumerates in various articles of our Constitution such as Article 50 which states the ‘Separation of judiciary from executive’. In India this doctrine follows in broader sense unlike US or Australian Constitution, where Separation of Power follows in rigid and strict sense. Therefore, Deviation from strict Separation of Power can be followed in various cases for example- the impeachment of president (judiciary) can be done in parliament (legislature) also. Then the Third part intends to broaden the understanding the system of Check and Balance. The natural extension of Separation of Power is system which simple means when any organ among Legislature, Executive & Judiciary interferes or intervene in the function of the other organ also in case of exercising its own power unduly then the other organ have power to stop that organ. The last part of the study deals with conclusions and findings with limitations as to why to perfect application is not possible and what remedies are present to tackle this situation.

Throughout this paper, I will cover all the reasons as to how Doctrine of Separation of Power is a part of the basic structure of the Indian Constitution.