The document discusses the doctrine of separation of powers in the United States and India. In the US, legislative power is vested in Congress, executive power in the President, and judicial power in the Supreme Court and federal courts. In India, there is a broad separation of powers with the executive, legislature, and judiciary each having their own spheres, but some overlap is permitted. The judiciary plays a key role in upholding the rule of law and constitution in both countries.

1. SEPARATION OF POWERS
The doctrine of Separation of Powers forms the foundation on which the whole structure of the
Constitution is based. It has been accepted and strictly adopted in U.S.A. Article I; Section 1 vests all
legislative powers in the Congress. Article II; Section 1 vest all executive powers in the President and
Article III; Section 1 vests all judicial powers in the Supreme Court.
Legislative power
Congress has the sole power to legislate for the United States. Under the non-delegation doctrine,
Congress may not delegate its law-making responsibilities to any other agency. In this vein, the
Supreme Court held in the 1998 case Clinton v. City of New York that Congress could not delegate a
"line-item veto" to the President, by which he was empowered to selectively nullify certain provisions
of a bill before signing it. The Constitution Article I, Section 8; says to give all the power to Congress.
Congress has the exclusive power to legislate, to make laws and in addition to the enumerated powers
it has all other powers vested in the government by the Constitution. Where Congress does not make
great and sweeping delegations of its authority, the Supreme Court has been less stringent. One of the
earliest cases involving the exact limits of non-delegation was Wayman v. Southard, Congress had
delegated to the courts the power to prescribe judicial procedure; it was contended that Congress had
thereby unconstitutionally clothed the judiciary with legislative powers.
Executive Power
Executive power is vested, with exceptions and qualifications, in the president by Article II, Section 1,
of the Constitution. By law the president becomes the Commander in Chief of the Army and Navy,
Militia of severalstates when called into service, has power to make treaties and appointments to
office. This procedure is an integral part of the constitutional design for the separation of powers.
Further rulings clarified the case; even both Houses acting together cannot override Executive vetos
without a 2/3 majority. Legislation may always prescribe regulations governing executive officers.
Judicial power
Judicial power — the power to decide cases and controversies — is vested in the Supreme Court and
inferior courts established by Congress. The judges must be appointed by the president with the
advice and consent of the Senate,hold office for life and receive compensations that may not be
diminished during their continuance in office. If a court's judges do not have such attributes, the court
may not exercise the judicial power of the United States. Courts exercising the judicial power are
called "constitutional courts." Congress may establish "legislative courts," which do not take the form
of judicial agencies or commissions, whose members do not have the same security of tenure or
compensation as the constitutional court judges. Legislative courts may not exercise the judicial
power of the United States. In Murray's Lessee v. Hoboken Land & Improvement Co.(1856), the
Supreme Court held that a legislative court may not decide "a suit at the common law, or in equity, or
admiralty," as such a suit is inherently judicial. Legislative courts may only adjudicate "public rights.
Doctrine in India
On a casualglance at the provisions of the Constitution of India, one may be inclined to say that that
the doctrine of Separation of Powers is accepted in India. Under the Indian Constitution, executive
powers are with the President, legislative powers with Parliament and judicial powers with Judiciary
(Supreme Court, High Courts and Subordinate Courts).
The President’s function and powers are enumerated in the Constitution itself. Parliament is
competent to make any law subject to the provisions of the Constitution and there is no other
limitation on it legislative power. The Judiciary is independent in its field and there can be no
interference with its judicial functions either by the Executive or by the Legislature. The Supreme
Court and High Courts are given the power of judicial review and they can declare any law passed by
the Parliament or the Legislature unconstitutional. Taking into account these factors,some jurists are
of the opinion that the doctrine of Separation of Powers has been accepted in the Indian Constitution.

2. In I.C.Golak Nath v. State of Punjab, it was observed: “The Constitution brings into existence
different constitutional entities, namely, the Union, the States 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 their limits. They should function within the spheres allotted to them.
In Indira Nehru Gandhi v. Raj Narain, it was observed: “That in the Indian Constitution there is
separation of powers in a broad sense only. A rigid separation of powers as under the American
Constitution or under the Australian Constitution does not apply to India. Chandrachud J. also
observed that the political usefulness of doctrine of Separation of Power is not widely recognized. No
constitution can survive without a conscious adherence to its fine check and balance. The principle of
Separation of Power is a principle of restraint which has in it the precept,innate in the prudence of
self-preservation, that discretion is the better part of valour
RULE OF LAW IN INDIA AND US
Rule of law in India
India included Rule of Law, by the influence of its application in England. The provisions of rule of
law are embedded in the Constitution of India, which is the Grund norm of the country. The
Constitution is the Supreme power of the state and no person is above the supreme power.
Article 13(1) provides that any law that is formulated and goes against the provisions of the
Constitution will be held void.
Justice, liberty, fraternity and equality are some provisions that are provided in the preamble of the
Constitution that reflects the provisions of rule of law.
Article 21 provides for the right to life that includes the right to live a dignified life, which is a
provision of rule of law.
The judiciary has played an important role in development of rule of law in India. Some of the cases
that reflect this importance are as follows:
1. ADM Jabalpur v. Shivkant Shukla: In this case,due to the imposition of emergency,
fundamentals rights were taken away. They were Article 14, 21 and 22. The issue raised was
whether only Article 21 protects life and liberty of people. The court held that only Article 21
does not protects life and liberty. It further held that Art. 21 loses procedural power during
imposition of emergency, but still has a substantive power
2. Indira Nehru Gandhi Vs. RajNarain: In this case,after Indira Gandhi Nehru won the elections, it
was found out that she won the elections by unfair means and therefore the High Court of
Allahabad held that she cannot contest in elections for six years. Soon after that emergency was
imposed in the nation. Constitutionality of Article 329A was in question. The court held the
Article 329A unconstitutional and held that Article 14 cannot be violated by any person.
3. Kesavananda Bharativ. State of Kerala: In this case,some pieces of land of the petitioner were
coming under the Government’s acquired land. The question in this case was whether the
judiciary has the power to amend the Constitution. It was held that judiciary has the power to
amend the Constitution for the welfare of the people. It was held that rule of law is the basic
structure of the Constitution
Rule of law in US
Rule of Law has been imbedded in the Constitution of United States. The Constitution is the supreme
law of land. Article IV of the Constitution conforms that the Constitution is the supreme law of the

3. nation. All the laws that are to be made should be made according to the Constitution and its
provisions. No person, not even the President is above the Constitution. The functioning of the
Government is done with accordance of the Constitution and no action of the Government shall
violate it. The Constitution provides for equality among the society. It is guaranteed under the
Fourteenth Amendment. Every citizen is treated equally and is seen equally by the eyes of law. Laws
are to be made with fairness and without discrimination among the people. The U.S. Constitution
provides rights to its citizens for their protection and betterment.
The structure of Government of the United States also follows the principles of separation powers,
which is an extension of rule of law. The function of the legislative body (Congress) is to make laws.
The function of the executive body which includes the President, Cabinet, and other agencies, is to
enforce laws. The function of the judicial body which includes federal courts, including the U.S.
Supreme Court, is to interpret laws and resolve disputes. The Supreme Court of the United States was
formed to be a watchdog of the Constitution so that it can guard the law and point out violations of the
law by the public office holders and other members of the government.
In the case of Marbury v. Madison, it was held that any law that violates the Constitution will be
struck down. This case established the provision of judicial review in the United States.
In Church of the Lukumi-Babalu Aye, Inc. v. City of Hialeah, it was held that the local laws were
violating the rights of the people under First Amendment. It was held that these clauses are in
violation of the provisions of the Constitution and shall be struck down.
In the case of Plyler v. Doe,it was held that denying education to the children of immigrants, who are
not documented is against the Fourteenth Amendment to the U.S Constitution. Therefore,it was held
that this practice violates the Constitution and should be brought down.
In the case of Brown v. Board of Education, it was held that segregating children on the basis of race
was against the Fourteenth Amendment to the U.S Constitution. The court ruled that this practice
violated the equal protection clause and this segregation should not be permitted.