Doctrine of Separation of Powers & Rule of Law

Doctrine of Separation of Powers & Rule of Law -Dr.G.B.Reddy Department of Law Osmania University Hyderabad-7 gbredlaw@gmail.com

Separation of Powers-Evolution • Propounded by Montesquieu, French scholar who found that concentration of power in one person or a group of persons results in tyranny. • “There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” -Montesquieu • “Power corrupts and absolute Power tends to corrupt absolutely”- Lord Acton

Theory of Checks and Balances • Expounded by James Madison as- “The accumulation of all powers, legislative, executive and judicial, in the same hands whether of one, a few, or many and whether hereditary, self-appointed or elective, may justly be pronounced the very definition of tyranny”. • Objective of the doctrine – 1) to preserve the human liberty by avoiding concentration of powers in one person or body of persons. 2) It acts as a check against Tyrannical rule; and 3) to diffuse governmental authority so as to prevent absolutism and guard against arbitrary and tyrannical powers of the state, and to allocate each function to the institution best suited to discharge it.

Separation of Powers under different Constitutions • Position in U.S.A.- 1) President’s power to override legislation passed by the Congress by veto . 2) Senate’s power to confirm appointments made by President or to reject the same . 3) Power of the Supreme Court to review the act of the Congress and the President • Position in U.K.- 1) the Crown - executive head & also integral part of Parliament and all his ministers are members of parliament. 2)The Lord Chancellor - member of the House of Lords, member of the Govt. and at the same time a senior most member of the judiciary; and 3) The judiciary is independent but the judges of the superior courts can be removed on an address from both the houses of parliament.

Position in India- 1)Apart from the directive principles laid down in Part-IV of the constitution which provides for separation of judiciary from the executive u/A 50 , the constitutional scheme does not provide any formalistic division of powers 2)In Indira Nehru Gandhi v.Raj Naryan, Chief Justice Ray observed that, Indian constitution recognizes the theory of separation of powers in broad sense only. however prior to that In Keshvanand Bhari v. State of Kerla out of thirteen judges Justice Beg held that separation of power is a part of basic structure of the constitution, however it was not approved by the other judges or in subsequent cases by the Supreme Court. 3) Delegated Legislation, Judicial Review, Impeachment of Judges of Higher Judiciary/President; and Ministers to be members of Legislature

Rule of Law • Rule of law - derived from the French phrase la principe de legalite [the principle of legality] • Denotes that government based on principles of law and not of men • Edward Coke – said to originator of this concept saying that- “the King must be under God and Law” • Can be used in two senses viz., formalistic sense, and ideological sense • In formalistic sense - it refers to organised power as opposed to rule by one man

In Ideological sense- it refers to regulation of relationship of citizens and government • Modern concept of Rule of Law-formulated by A.V.Dicey • Three Dicean Principles of rule of Law 1) Absence of discretionary power in hands of government 2) No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land; and 3) The rights of the people must flow from the customs and traditions of the people recognised by the courts in administration of justice

Rule of Law-Implications • Absence of special privileges for a government official or any other person • All the persons irrespective of status must be subjected to the ordinary courts of the land; and • Everyone should be governed by the law passed by the ordinary legislative organs of the state

Rule of Law-Constitutional perspectives • Right to Equality- Equality before law & Equal protection of law (Art.14-18) • Exceptions (Privileges of legislature, administration, immunities enjoyed by President etc.) • Rule against Arbitrariness (Art.14) • Rule of Law - cardinal principle to prevent maladministration • Rule of Law - recognised as a basic feature of the Constitution

Conclusion • THANK YOU

Doctrine of Separation of Powers & Rule of Law