Doctrine of Separation of power: Administrative Law Notes

Introduction

The doctrine of Separation of Powers stands as a foundational principle in the realm of administrative law, aiming to delineate and distribute authority among the different branches of government. It serves as a cornerstone in constitutional frameworks, seeking to prevent the concentration of power in a single entity, thereby safeguarding against potential abuses and ensuring a system of checks and balances. This doctrine establishes distinct functions for the legislative, executive, and judicial branches, defining their roles and limiting encroachment upon each other’s domains. Understanding the practical application and implications of the Separation of Powers doctrine in administrative law is essential in comprehending the functioning and governance of modern states and their legal systems.

The doctrine of Separation of Powers has an ancient origin. Its history can be traced back to Aristotle. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locke, respectively, expounded upon the doctrine of the separation of powers.

However, it was the French jurist Montesquieu who, for the first time, provided a systematic and scientific formulation of this concept in his book ‘De L’esprit des lois’ (1748) (The Spirit of the Laws).

Nature and Meaning of Doctrine of Separation of power

The separation of powers is rooted in the principle of trias politica, which denotes the division between three independent powers within a nation: the Legislature, Administration, and Judiciary. The doctrine of separation of powers asserts that none of the branches of government—the legislative, executive, or judicial—should wield the authority of the others. This separation implies that the three governmental departments should be distinct and independent from one another, with each possessing the authority for either legislative, executive, or judicial functions.

The doctrine of the separation of powers is based on the philosophy of trias politica, which rests on three principles:

• One organ should not be a part of the other two organs (Judiciary cannot be a part of the executive and legislature).
• One organ should not interfere in the workings of another organ (The executive cannot interfere in the legislature’s work).
• One organ should not perform the functions of another organ (The legislature cannot carry out the duties of the Judiciary).

Purpose of Doctrine of Separation of power

• Smooth functioning of the system
• Restrict the power of state
• To safeguard the interest of individuals
• Cheques & Balances
  Cheques: One organ is answerable/accountable to the other organ
  Balances: The distribution of power must be equal

In the British Constitution, Parliament holds the supreme legislative authority. Simultaneously, it exercises complete control over the Executive. The coordination between the Legislature and the Executive is ensured through the Cabinet. The Cabinet is collectively accountable to Parliament. The Prime Minister, who is the head of the majority party, serves as the Chief Executive authority and forms the Cabinet. In England, the Legislature and the Executive are not entirely separate and independent, especially concerning the Judiciary. However, the independence of the Judiciary has been safeguarded by the Act for Settlement of 1701. This act stipulates that judges hold their office during good behavior and can be removed upon the presentation of addresses by both Houses of Parliament. Additionally, they have complete immunity in relation to their judicial acts.

Position in India : Constitutional provisions.

The Constitution does not contain separate provisions explicitly outlining the Doctrine of Separation of Powers. However, some directive principles are outlined in the Constitution under Part IV and Part V. The Constitution mandates the separation of the judiciary from the executive, stating, “the state shall take steps to separate the judiciary from the executive in the public services of the state.” Aside from this directive, there is no formal and rigid division of powers. In India, not only is there functional overlap, but there is also prevailing personal overlap.

Judiciary

Under Article 142 and Article 145 of our constitution, the court has the power to declare void any laws passed by the legislature and actions taken by the executive if they violate any provision of the constitution or laws passed by the legislature, or in the case of executive actions. Additionally, the court has the power to amend the constitution subject to scrutiny by the Court. The Court can declare any amendment void if it changes the basic structure of the constitution (Keshavananda Bharti State of Kerala, (1973) SCC 225, AIR 1973 SC 1461). In many cases, courts have issued directions to Parliament to create policies.

Executive

The President of India, as the supreme executive authority in India, exercises the law-making power through the ordinance-making power under Article 123. Additionally, the President holds judicial powers under Article 103(1), consulting power under Article 143, and the pardoning power under Article (not specified in the provided text). The executive also impacts the functioning of the judiciary by making appointments to the office of the Chief Justice of India and other judges.

Legislature

The Council of Ministers is selected from the legislature and is accountable to the legislature. The legislature holds judicial powers in cases of breaching its privileges, the impeachment of the President under Article 61, and the removal of judges. Additionally, the legislative body possesses punitive powers under Article 105(3).

In the case of State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511), the Supreme Court held that the judiciary must recognize the fundamental nature and importance of the legislative process and accord due regard and deference to it. Similarly, the Legislative and Executive branches are also expected to show due respect and deference to the judiciary. The Constitution of India acknowledges and enforces the concept of equality among the three branches of government. The idea of checks and balances is inherent in this system.

In conclusion, it can be stated briefly that the Doctrine of Separation of Powers is followed in spirit in the United States, not purely in the United Kingdom, and India has followed it with significant exceptions.