In Platos writings we find that he believed, while talking about mixed government, in

coordination between different functionaries of the government, wherein there is enough

room for moderation and compromise. He firmly believed that too much concentration of
power leads to wantness of excesses.

He advocated an idea that jurisprudentially there are two mother forms of state-
Democracy and Monarchy, from which various other forms may emerge. Explaining
about the nature of society and polity, he strongly believed class of society as basis and
the society with potentially conflicting interests must be harmonized through controlled
structure. Accordingly, constitutional structure must be so as to have control over those
actions in which societys interest will be protected.

Aristotles writings reflect that each organ of the state to have limitations on its functions
with an element of respect for the autonomy of other.

Further, the balanced constitution came to be the basis of writings of Montesquieu. His
writings are influenced by his stay in European countries and the residence in England.
Thats why his writings are blend of different systems.

Montesquieu in his book construction of constitution explains the doctrine of

separation of power. He writes that the essence of the doctrine of separation of power lies
in the fact that:

1. It differentiates, isolates and immunes the functions of government amongst and

between the organs of state.
2. It creates incapacity to interfere over each other. Therefore, he refrained from
using the term equal. He writes that the organs are independent and coordinating.

Another scholar E.S Corwin has summarized the doctrine in his Official Commentary
on Congressional Power in US. He says that for application of the doctrine there must be
three different branches which must be separately manned.
In Myers v. United State, Justice Brandeis says that the doctrine of the separation of
powers was adopted by the convention of 1787 not to promote efficiency, but to preclude
the exercise of arbitrary power. The purpose was not to avoid friction but, by means of
the inevitable friction incident to the distribution of the governmental powers among
three departments, to save the people from autocracy.

English basis of the doctrine- King could not legislate but can accede to legislation.
Parliament supervises execution of laws but cannot execute.

Montesquieu on judiciary as third organ of the state: Ultimate protectors of liberty of

people were expected to limit themselves as interpreter of the law i.e. no more than the
mouth that pronounces the law. They shall remain passive beings incapable of
moderating either the force or the vigor of the law. Thats why they have been kept
independent.

According to English authors, the overlapings in power are bound and therefore there
cannot strict separation of power. Sharing of legislative power was the foundation of
theory of balanced constitution i.e. powers and functions of the king in Parliament. (king
being the essential part of the legislature)

As far as Montesquieus writings are concerned, according to him the entire legislative
body consists of two parts (bicameral legislature) with a separate executive having no or
limited part to play in legislative exercises. According to him, King was to ensure
execution of laws.

The executive to have a share in the legislative power by a veto over legislation but
cannot enter into making a law. (Discuss article 123 along with the constituent assembly
debate Volume VIII Monday, the 23rd May 1949)

Executive has the power of calling and fixing the duration of meetings of the legislature,
so that the legislature does not become despotic. Ordinarily, the legislature should not
have the power to stay executive, but shall have the power to decide the manner in which
laws are to be executed.

The idea of checks and balances is not to make a particular organ more powerful but
make all the organs inter-dependent.

Position in US

President is both the head of the state and the chief administrator of the executive. He is
responsible for the faithful execution of laws. He has the power to appoint and remove
the administrative officers including appointment of secretaries of various departments
who act as personal advisers and whose advice has no binding effect. He is completely
politically responsible for his actions. Bowite and Friedrich in their book named
_________ observed that cabinet is not the device of showing responsibility among the
group; rather it is a necessary result of presidents inability to supervise all the functions.
Shwartz observed because of his unfettered powers of removal of secretaries and the fact
that term of his office is not in any way dependent on the effect which his dismissal of the
cabinet members may have upon the congress, the president is able to dominate his
cabinet to an extent which would be almost impossible in case of a Prime Minister.

Jennings while writing on Law and the Constitution observed that there ought to be
separate organs for each working together but none of them should be dependent on and
discharge the functions of the another.

The case of Youngstown Sheet & Tube Co. v. Sawyer deserves our attention. The
dispute involved in this case is related to the presidential order issued by President
Truman to take over the possession of sheet and tube companies and ensure that they
remain functional. Having issued the order he sent the message to the Congress twice.
The necessity of the order arose due to the threat given by workers of sheet and tube
companies to go on indefinite strike. Majority of these companies were manufacturing
raw materials required for maintaining weaponry system. He issued the orders under his
military powers.
Arguing on behalf of the president and the secretaries, Perlman said that such power is
implied from the aggregate of his powers provided under article 2. Article 2 vests all
executive powers in him including military powers as chief of the armed forces.

Petitioners argued that faithful execution of powers does not make him a law make. Rule
is limited by his powers of dissent and veto over the act of congress. The constitution
does not subject the law making of congress under presidential or military control. Justice
Black accepted this argument. However, he said that the act of sending message to the
congress has discharged the president of his responsibility. He is not acting as mere
delivery boy, rather sending message stating the purpose with assurance to the congress
to abide by its decision over the temporary action taken by him justified the act.

Justifying the order further the court noted that there is no judicial finding that action was
unwarranted because there was no basis for emergency.

Further Justice Jackson explained that there may be three practical situations in which a
President may doubt, or others may challenge, his powers, and by distinguishing roughly
the legal consequences of this factor of relativity. These situations are:

1. When the President acts pursuant to an express or implied authorization of

Congress, his authority is at its maximum, for it includes all that he possesses in
his own right plus all that Congress can delegate. In these circumstances, and in
these only, may he be said (for what it may be worth) to personify the federal
sovereignty. If his act is held unconstitutional under these circumstances, it usually
means that the Federal Government, as an undivided whole, lacks power. A
seizure executed by the President pursuant to an Act of Congress would be
supported by the strongest of presumptions and the widest latitude of judicial
interpretation, and the burden of persuasion would rest heavily upon any who
might attack it.
2. When the President acts in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers, but there is a zone
 of twilight in which he and Congress may have concurrent authority, or in which
its distribution is uncertain. Therefore, congressional inertia, indifference or
quiescence may sometimes, at least, as a practical matter, enable, if not invite,
measures on independent presidential responsibility. In this area, any actual test of
power is likely to depend on the imperatives of events and contemporary
imponderables, rather than on abstract theories of law.
3. When the President takes measures incompatible with the expressed or implied
will of Congress, his power is at its lowest ebb, for then he can rely only upon his
own constitutional powers minus any constitutional powers of Congress over the
matter. Courts can sustain exclusive presidential control in such a case only by
disabling the Congress from acting upon the subject. Presidential claim to a power
at once so conclusive and preclusive must be scrutinized with caution, for what is
at stake is the equilibrium established by our constitutional system.