Separation of powers can be defined in an organization as a "structure where responsibilities, authority, and power are divided equally between different organs rather than being held centrally". The origin of the Doctrine of Separation of Powers can be traced back to the period of eminent jurists, Aristotle for the first time classified the functions of the government into 3 categories i.e. deliberative, magisterial, and judicial. Lockes categorized them into continuous executive power, discontinuous legislative power, and federative power. This paper aims to provide a comparative analysis of the separation of powers between India and France.

It also examines the constitutional framework, the role of different branches of the government, and the concept of checks and balances in each country.

The Doctrine of Separation of Powers

The doctrine of separation of powers postulates the division of powers between the legislative, executive, and judiciary in a state. The main rationale for such distinction is prohibiting any arbitrary actions of the government at the onset of it.

The history of the doctrine can be traced back to the ancient and medieval theories of mixed government. The theories of mixed government as a concept originated in the second century BC by the Greek historian Polybius who stated that this form of governance combines the elements of the monarch, aristocrat, oligarchic, etc. The followers of mixed government argued that a government should involve different elements in a society like monarchic, aristocratic, and democratic.

The doctrine of separation of powers was formulated by the French political philosopher "Montesquieu" in De l'espirit des Lois (The Spirit of Laws) in 1798.

In the words of Montesquieu, he stated that "when the legislative and executive powers are united in the same person or with the same body or magistrate, there can be no liberty. This similar thing is repeated if the judicial power is not separated from the legislative or executive power"[1]. If the Judiciary is co-joined with the executive it may pave chances for the judiciary.

Separation Of Powers A Comparative Study:

France

In France, the concept of Separation of powers is enshrined in the Constitution. The President is responsible for the executive branch of the government, but his powers are subjected to oversight by the French Parliament. France has a bicameral legislature that consists of the National Assembly and the Senate. The French system of Separation of powers is often regarded as the "purest" system of separation of powers, which ensures a degree of accountability and independence among all the organs of the government.

Executive power in France

Head of State
France has a semi-presidential system, wherein the President is the head of the state. The President is elected by the citizens through general elections, occurring every five years. The President is conferred with a wide array of executive powers.

Head of government
The French Prime Minister is appointed directly by the President. The Prime Minister is the head of the government and leads the council of ministers. The President however is conferred with the decision-making power and can over rule the Prime Minister.

French Administrative System
The French system of administration is considered to be the purest form of administration in the world and is known as "Droit administratif". Droit administratif is a court, that deals with matters about administration involving the government or public servants against private citizens. This system of administration was given to the French people by Napolean Bonaparte who is considered to be the father of the Droit administratif.

The development of this system of administration in France started with the "Conseil du Roi". The Conseil du Roi used to advise the king on both administrative and judicial matters, it used to perform both legislative and judicial functions. The 16th century saw an enormous rise in the jurisdiction of the Conseil du Roi. It possessed the authority to adjudicate on any matter involving the government and could even withdraw any matter from ordinary court. Due to this arbitrary, unlimited, and unchecked power of the Counseil Du Roi, it was abolished after the French Revolution. [2]

After the French Revolution and the abolishment of the Counseil Du Roi, Napoleon Bonaparte came to power in France. He was not happy with the state of administration in France and noted that the powers of the administrative authorities were unchecked, to curtail this he came up with the concept of "Counseil D' Etat"

Counseil D' Etat was the establishment of a court that used to look after administrative matters, however, it later on transformed itself into a judicial body. The counsel d etat works independently without the jurisdiction of the ordinary courts and is quite independent in practice.[3] It is a court of appeal to all other administrative tribunals and all the other administrative tribunals in France are subordinate to the Counseil D' Etat.

The Counseil D' Etat does not involve the rules laid down by the French Parliament, it consists of rules laid down by the administrative courts. The Counseil D' Etat used to receive complaints through ministers and used to advise the ministers, it does not have the power to pronounce judgments and represents the government's point of view.

To protect the interference of the administrative tribunals in the working of the ordinary courts a separate "Tribunal Des Conflicts" was constituted it decides whether a matter should go to the court or a tribunal. The composition of the Tribunal Des Conflicts is such that it consists of Judges and bureaucrats in equal numbers, with the Minister of Justice as the President[4]. When the members of the tribunal are equal on any issue, then he has the power to use his veto power.

A classic case about the jurisdiction of the Counseil D' Etat was the "Arrets Blanco" Case, the brief facts of the case state that, A small girl named Arrets Blanco was run over by a wagon, in a state-controlled factory. The father of the girl sued the government since the ownership of the factory was with the government. This gave rise to the question of whether this matter should be adjudicated by an ordinary court or the Counseil D' Etat. The Tribunal Des Conflicts in this case gave the decision, that any matter concerning the government shall be adjudicated by the Counseil D' Etat.

Droit administratif was subjected to criticism by Dicey, as per him droit administratif is a system of administration, that deals with administrative matters between the government and private people. Dicey himself was a great follower of ordinary courts and said that there should not be any separate jurisdiction for any court. The Counseil D' Etat has however worked effectively to achieve its judicial functions. The French administrative system can be however termed to have a more distinct system of separation of powers than the one followed in the United Kingdom.

India

In India, the concept of Separation of powers is not stated explicitly. The Constitution however establishes 3 branches of the government- the executive, judiciary, and legislature, all these organs of the government provide for a system of checks & balances. The President serves as the head of the Executive, the Parliament represents the Legislature, and the Supreme Court the Judiciary.

The concept of separation of power in India transformed itself at the discretion of the rulers until 1947. Post Independence, India was foreign to the names "Legislature", "Executive", and "Judiciary". Rather, it had its concept of separation of powers which was vested in the "Deewan", "Senapati", and "Kazi".

If we look at "Smritis", i.e. the ancient source of law, we can find such separation of powers, wherein the Dewan was the head of the executive, the Senapati looked into the legislature and the Kazi was responsible for the judiciary. All these authorities were subordinate to the King, who acted as the supreme authority.

Looking at the scenario post-independence, the Constitution of India was formulated on 26th November 1949 and came into effect on 26th January 1950. The Constitution however does not have the term "separation of powers" specifically written, but how the powers are shared among the organs marks its presence.

The separation of powers in India becomes evident with its parliamentary system of government, wherein there is a clear division between the Executive, Legislature, and Judiciary. The President acts as the executive, Parliament is the legislative organ and courts are responsible for the Judiciary. Similarly, there is a clear separation of powers at the state level as well.

When the Constitution of India was being drafted and the debates in the Constituent Assembly were taking place, the complete separation between the executive and judiciary was adopted into the directive principles of state policy. It meant a complete separation of power between the powers of the executive and judiciary without any interference between the two.

During the amendment procedure of the Constitution, Prof. K.T. Shah proposed an amendment that this separation of power shall not be included as a Directive Principle of State Policy, but rather be inserted as a separate article (Article 40A) in the Constitution, since he was of the view that [5] "It is necessary to maintain a complete independence between the legislature, executive, and judiciary to secure a measure of independence among the working of the organs of the government".

After the debates and discussions, most members however did not believe in inserting the separation of power in a separate article, because:

1. It was already too late to amend the constitution since the constitution was already drafted, and on introducing this amendment the whole structure of the constitution would have changed.
    
2. Secondly, the makers of our constitution chose the Parliamentary (British) form of government, and keeping in view the British practice of separation of powers, it was better not to adopt a complete separation of powers like America.

India has a clear distinction on executive powers, which are classified broadly as "Head of State" and "Head of government".

Head of State
The President is the head of the State in India. The President is though conferred with limited ceremonial duties and performs mainly ceremonial duties. The President is appointed by the members of both houses of Parliament and the State legislature.

Head of Government
The Prime Minister is elected directly by the Citizens of India and appointed by the President. The Prime Minister is the head of the government and is conferred with a considerable amount of executive powers and functions. The Prime Minister is assisted by a Council of Ministers. The Prime Minister is the leader of the political parties or coalition of parties that has the majority in Lok Sabha.

Independence of Judiciary
In India, there is complete independence of the Judiciary, the judiciary works independently and without any interference from the executive or legislature. Until 1973 there was a consensus between the government and the Chief Justice, which stated that the seniormost judge of the Supreme Court had to be appointed as the Chief Justice of India. The issue started to gain importance when Justice AN. Ray was appointed as the Chief Justice of the apex court in 1973, superseding the seniority of 3 senior judges of the Supreme Court, this resulted in a clash between the executive and the Judiciary.

A petition was therein filed before the Supreme Court of India, on the arbitrary appointment of judges that violated the consensus formed between the Chief Justice and the government.

Citing the above circumstances a petition was filed before the Supreme Court in 1982, i.e. "S.P. Gupta vs Union of India"[6] popularly known as the First Judges Case . The Supreme Court discussed 2 important points in this case. In the first point the Supreme Court was asked whether the term "concurrence" and "consultation" mean the same thing or not, to this the Supreme Court contended that "Consultation under Article 124 of the constitution does not mean concurrence". It also said that the President is not bound to make any kind of decision on the consultation of the Supreme Court.

The second important point discussed in this case was that the Supreme Court decided that a High Court Judge could be transferred to any other High court of a state against his own will.

The Judges in India were appointed by the President in consultation with the Chief Justice of India and two senior judges of the supreme court, this system was in place till 1993. The Collegium system of appointment of judges was adopted after the famous case of "Supreme Court Advocates On Record Association and Anr. Vs Union of India"[7] also known as the Second Judges Case The Judges in the higher judiciary in India were then appointed by the "Collegium System".

The collegium consists of the Chief Justice of India, along with 4 senior judges of the Supreme Court, who make decisions on appointments and transfer of judges. The concept of collegium is not mentioned in the Constitution but has paved its way to the judiciary through multiple Judicial pronouncements.

In the case of Supreme Court AOR & ORS. VS Union of India[8], popularly known as the fourth judge's case wherein the 99th Constitutional amendment was challenged on the ground that the National Judicial Appointments Commission (NJAC) was established under Article 124A of the Constitution to formulate an authority for the appointment of judges in the Supreme Court and the High Courts. While hearing this matter the Supreme Court through its constitution bench read down article 124A stating that NJAC was encroaching upon the basic structure of the constitution by hitting deep on the separation of power between legislature and judiciary.

The Judiciary is for the protection of the Constitution, and an independent judiciary is a necessity that works to secure the rights of citizens against any infringement. Article 50 of the Constitution of India which is an endeavor of the framers of the constitution is solely based on the principle of Independence of the Judiciary, as it separates the power between the executive and Judiciary, it clearly states that "The state shall take steps to separate the judiciary from the executive in the public services of the state."[9]

Article 50 of the Constitution, mainly works to establish the Independence of Judiciary and to prevent the control of the executive from the judiciary This viewpoint was supported in the case of Kumar Padma Prasad vs Union of India,[10] wherein the Supreme Court quashed the appointment of a High Court Judge, after finding that such an appointment was ineligible, since the appointed judge was mired with corruption allegations and didn't meet the eligibility criteria under Article 217 of the Constitution of India The Supreme Court in this case also held that "The Independence of Judiciary is a part of a basic structure of the Constitution. To achieve this objective there has to be a separation of the judiciary from the executive."

In S.K. Gupta vs President of India[11], it was held that the independence of the Judiciary is a basic structure doctrine that needs to be confined within the 4 corners of the Constitution. Hence, we can say that we have separate powers and functions of the Judiciary but up to some degree.

We cannot say that India has an absolute separation of powers since there is the presence of minimal interference of the organs while carrying out the duties of one another. The Judiciary started to interfere in the decisions of policy-making of the executive. It was held in the case of "Vineet Narain vs Union of India".[12] Wherein the Supreme Court dealt with the issues of the CBI and other investigative agencies, regarding the investigation of high-ranking officials and corrupt politicians in a proper manner, to maintain the integrity of these agencies.

In India, there is a constant tussle between the legislature and the judiciary. The apex court in many of its judgments has cleared the stand for the Indian judiciary. The concept of separation of powers is much older than the Indian Constitution and even after the framing and enactment of the Constitution, the dispute of ultra-vires continues, whether one organ of the country is exceeding its powers or not.

Conclusion
We can infer from this that the term Separation of powers does not have one particular and common definition or interpretation and has been interpreted by different countries as per their understanding and conditions. In the United Kingdom, the doctrine of separation of powers is not followed properly in the utmost pure manner, by comparing it with France it would be clear that the French system of separation of powers is more transparent than the United Kingdom. In India, however, there is no clear-cut separation of powers but it has been followed wherever needed through judicial pronouncements.

This paper throws light on the need for having separation of power and its need in democratic governance. This paper has analyzed the powers of the executive in both countries, through similarities and differences in both systems, it has also focused on the concept of Judicial independence subsisting in both nations.

Comparing the concept of judicial independence between both countries highlights the essentiality of an autonomous judiciary in the promotion of justice. On examining the legal systems of both countries, one may identify the similarities and disparities in both systems of judiciary. Looking at the system of Judicial independence in both countries the concepts of impartiality and integrity can be inferred from the functioning of the judiciary in both countries.

Overall, the paper has attempted to establish a comprehensive view of the comparative analysis in the separation of powers between India and France, that enables us to appreciate the complexities and significance of this concept.

End-Notes:

1. Montesquieu, De L‟ Espirit des lois, 1748 quoted in Justice D.D. Basu: Administrative Law,
2. IP Massey; Administrative Law
3. A.V. DICEY, AN INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 340 (10th ed. 2008).
4. M.P. JAIN & S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 25 (6th ed. 2007)
5. Constituent assembly debates(proceedings)- volume VII- Friday, 10th Dec, 1948, para 20
6. AIR 1982, SC 149
7. AIR 1994 SUPREME COURT 268, 1993
8. (2016) 5 SCC 1
9. The Constitution of India, Article 50
10. AIR 1992 SC 1213
11. IR 1982
12. AIR 1998