ADMINSTRATIVE LAW- separation of powers

Introduction
The separation of powers is imitable for the administration of federative and
democratic states. Under this rule the state is divided into three different
branches- legislative, executive and judiciary each having different
independent power and responsibility on them so that one branch may not
interfere with the working of the others two branches. Basically, it is the rule
which every state government should follow in order to enact, implement the
law, apply to specific case appropriately. If this principle is not followed then
there will be more chances of misuse of power and corruption If this doctrine
is followed then there will be less chance of enacting a tyrannical law as they
will know that it will be checked by another branch. It aims at the strict
demarcation of power and tries to bring the exclusiveness in the functioning
of each organ.

In India, functions are separated from powers rather than the other way
around. The idea of the separation of powers is not properly followed in India,
unlike in the US. The court has the authority to overturn any unlawful
legislation that the legislature passes thanks to a system of checks and
balances that has been put in place.

Background
The term “separation of powers” or “trias–politica “ was initiated by Charles
de Montesquieu. For the first time, it was accepted by Greece and then it was
widely used by the Roman Republic as the Constitution of the Roman
Republic. Its root is traceable in Aristotle and Plato when this doctrine
became a segment of their marvels. In 16th and 17th-century British
politicians Locke and Justice Bodin, a French philosopher also expressed their
opinion regarding this doctrine. Montesquieu was the first one who
articulated this principle scientifically, accurately and systemically n his book
“ Esprit des Lois” (The Spirit Of Laws) which was published in the year 1785.

Montesquieu, a French scientist, originally proposed the doctrine of

separation of powers in his book “Espirit des Louis” published in 1747. (The
spirit of the laws). Montesquieu discovered that when power is concentrated
in the hands of a single person or a group of people, a despotic government
emerges. To avoid this predicament and to limit the government’s arbitrary
nature, he argued that the three organs of the state, the Executive,
Legislative, and Judiciary, should have a clear distribution of power.

Montesquieu went on to clarify the idea in his own words:

“When the legislative and executive powers are united in the same person,
or in the same body or magistrates, there can be no liberty. Again, there is
no liberty if the judicial power is not separated from the legislative and
executive powers. Where it joined with the legislative power, the life and
liberty of the subject would be exposed to arbitrary control, for the Judge
would then be the legislator. Where it joined with the executive power, the
Judge might behave with violence and oppression. 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.”

Wade and Phillips provide three definitions of the separation of powers:

1. That one branch of government should not carry out the duties of
another, such as giving ministers legislative authority;
2. That one branch of the government should not exert control over or
interfere with another branch’s performance of its duties, such as
when the judiciary is separate from the executive branch or when
ministers are not answerable to Parliament;
3. That the same individuals should not serve in more than one of the
three branches of government, such as sitting as Ministers in
Parliament.
Three formulations of structural classification of governmental powers are
included in the separation of powers theory:

 A single person should not serve in more than one of the

government’s three branches. Ministers, for instance, should not be
allowed to sit in the House of Commons.
 A government organ should not be allowed to meddle with another
government organ.
 The functions of one organ of government should not be performed
by another.

Meaning
The definition of separation of power is given by different authors. But in
general, the meaning of separation of power can be categorized into three
features:

 A person forming a part of one organ should not form part of

another organ.
 One organ should not interfere with the functioning of the other
organs.
 One organ should not exercise the function belonging to another
organ.
The separation of power is based on the concept of triaspolitica. This principle
visualizes a tripartite system where the powers are delegated and distributed
among three organs outlining their jurisdiction each.
To know more about the separation of powers and its relevance in brief,
please refer to the video below:

Three-tier machinery of state government

It is impossible for any of the organs to perform all the functions
systematically and appropriately. So for the proper functioning of the powers,
the powers are distributed among the legislature, executive and judiciary.
Now let’s go into the further details of the functioning of each organ.

Legislative
The main function of the legislature is to enact a law. Enacting a law
expresses the will of the State and it also acts as the wain to the autonomy of
the State. It is the basis for the functioning of executive and judiciary. It is
spotted as the first place among the three organs because until and unless
the law is framed the functioning of implementing and applying the law can
be exercised. The judiciary act as the advisory body which means that it can
give the suggestions to the legislature about the framing of new laws and
amendment of certain legislation but cannot function it.

Executive
It is the organs which are responsible for implementing, carrying out or
enforcing the will of the state as explicit by the constituent assembly and the
legislature. The executive is the administrative head of the government. It is
called as the mainspring of the government because if the executive crack-
up, the government exhaust as it gets imbalanced. In the limited sense,
executive includes head of the minister, advisors, departmental head and his
ministers.

Judiciary
It refers to those public officers whose responsibility is to apply the law
framed by the legislature to individual cases by taking into consideration the
principle of natural justice, fairness.

Significance
As it is a very well known fact that whenever a large power is given in the
hand of any administering authority there are higher chances of
maladministration, corruption and misuse of power. This doctrine helps
prevent the abuse of power. This doctrine protects the individual from the
arbitrary rule. The government is the violator and also protects individual
liberty.

Summarily, the importance can be encapsulated in the following points:

 Ending the autocracy, it protects the liberty of the individual.

 It not only safeguards the liberty of the individual but also maintains
the efficiency of the administration.
 Focus on the requirement of independence of the judiciary
 Prevent the legislature from enacting an arbitrary rule.

onstitutional status of separation of power in

India
Going through the provisions of Constitution of India one may be ready to say
that it has been accepted in India. Under the Indian Constitution:

Parliament ( Lok Sabha and Rajya Sabha)

Legislature
State legislative bodies

At the central level- President

Executive At the state level- Governor

Judiciary Supreme Court, High Court and all other subordinate courts
The Parliament is competent enough to make any law subject to the
conditions of Constitution and there are no restrictions on its law-making
powers. The president power and functions are given in the Constitution itself
(Article 62 to Article 72). The judiciary is self –dependent in its field and
there is no obstruction with its judicial functions either by Legislature or the
Executive. The High Court under Article 226 and Article 227 and Supreme
Court under Article 32 and Article 136 of Constitution are given the power
of judicial review and any law passed by the legislature can be declared void
by the judiciary if it is inconsistent with Fundamental Rights (Article 13). By
going through such provisions many jurists are of opinion that doctrine of
separation of powers is accepted in India.

Before looking into the case laws, let us understand what the meaning of the
doctrine of separation of power is in a strict and broad sense.

The doctrine of separation of power in a rigid sense means that when there
is a proper distinction between three organs and their functions and also
there should be a system of check and balance.
The doctrine of separation of power in a broad sense means that when
there is no proper distinction between three organs and their functions.

In the case of I.C Golakhnath vs State of Punjab, the Constitution

brings in actuality the distinct constitutional entities i.e namely, the Union
territories, Union and State. It also has three major instruments namely,
judiciary, executive and legislature. It demarcates their jurisdiction minutely
and expects them to exercise their function without interfering with others
functions. They should function within their scope.

If we go through the constitutional provision, we can find that the doctrine of

separation of power has not been accepted in a rigid sense in India. There is
personnel overlapping along with the functional overlapping. The Supreme
Court can declare any law framed by the legislature and executive void if
they violate the provisions of the Constitution.

Executive also has an impact on the functioning of the judiciary as they

appoint the judges and Chief justice. The list is so exhaustive.

In the case of Indira Gandhi vs Raj Narain, the court held that In our
Constitution the doctrine of separation of power has been accepted in a
broader sense. Just like in American and Australia Constitution where a rigid
sense of separation of power applies is not applicable in India.

Impact of the doctrine of separation of

powers on democracy
The doctrine of separation of powers seeks to protect the centralization of
power in one hand; as history has repeatedly demonstrated, centralisation of
power in one or a few hands can lead to disastrous outcomes. The application
of this principle makes the government liable, accountable, and answerable
to its citizens for its actions, thereby aiding in the promotion and protection
of human rights. This eliminates one of the most serious weaknesses of other
forms of administration, such as monarchy or dictatorship, in which the king
is not accountable to his people. When applied, the principle creates a
balance of powers inside the government, in which each of the government’s
bodies’ functions are kept in check by the others while remaining
independent of one another. This assures that the laws are just, fair, and
adhere to the natural justice ideal. Furthermore, because it is independent of
the other departments, the court can administer equitable justice.
Democracy is flawed without Separation of Power.

Global perspective
Separation of power has been accepted and adopted across the globe. The
United States has one of the most initially established versions of this
doctrine, which finds its origin in its constitution. The theory of separation of
powers in various aspects has been included in certain other constitutions
around the world. The Australian Constitution favours the devolution of
legislative functions to the executive rather than judicial institutions. This
idea is also believed to be the foundation of the Sri Lankan Constitution.
France is another country where this doctrine has an effect, and this doctrine
flows out of the French constitution. The United Kingdom too has a separation
of powers concept on an informal note. Some of the prominent countries that
have adopted this concept are as follows:

United States
The concept of separation of powers is quite specifically stated in the US
Constitution. It gives Congress, which consists of the Senate and the House of
Representatives, legislative authority. The President has executive authority,
and the Supreme Court and any further Federal Courts that Congress may
establish have judicial authority. The Constitution specifically outlines the
President’s powers, and he is elected in a separate election for a fixed term
of four years. He is tasked by the Constitution with ensuring that the
country’s laws are faithfully carried out. The President has the authority to
nominate and dismiss the executive officers known as the Cabinet, who are in
charge of the major state departments. This is done to maintain the
separation between the executive and legislative branches of government.
Neither the President nor any of his secretaries may be members of the
Congress, and any member of the Congress may join the government only
after resigning from his membership. The President is normally irremovable
from office, but the Senate has the power to remove him through the process
of impeachment if he commits high crimes and misdemeanours such as
bribery or treason. The after-effects of the Watergate scandal of 1972 on the
President act as a prominent illustration of this. Once nominated, the
Supreme Court’s judges are not subject to the authority of either Congress or
the President. But they too could be impeached and forced out of their
positions.

The Supreme Court’s authority was created in Marbury v. Madison in 1803

when it ruled that the President’s acts and the Acts of the legislature were
both in violation of the Constitution. The Supreme Court also found that any
significant delegation of legislative authority by Congress to executive
agencies was in violation of the Constitution’s tenet of the separation of
powers.

United Kingdom
Unlike the United States, the United Kingdom does have a separation of
powers concept and it exists in the country more on an informal note. The
United Kingdom benefits more from Black Stone’s “mixed government” with
checks and balances doctrine. The U.K. Constitution does not have separation
of powers as an essential or defining principle. Because there is no formal
division of powers in the United Kingdom due to the lack of a written
constitution, any Act of Parliament that grants any power in violation of the
concept may be deemed unconstitutional. The Parliament continues to have
undisputed authority, and as a result, the Crown rules through ministers who
are elected by and answerable to the Parliament. The Act of Settlement,
1700, effectively cemented the judiciary’s independence. The Supreme Court
operates with its powers separated from those of Parliament.
The Constitutional Reforms Act of 2005‘s Section 61 outlines the structure for
judicial appointments. Commission responsible for choosing judges for the
Supreme Court and the court of appeals. Thus, the Constitutional Reforms Act
of 2005 has generally ensured the independence of the court.

The three branches continue to significantly overlap and are not properly
divided. Administrative tribunals rather than regular courts handle many
issues that emerge during the course of government. However, by preserving
key components of “fair judicial procedure“, the impartiality of the tribunals
is kept intact. Senior justices have frequently stated that a division of powers
is the foundation of the British Constitution. It cannot be emphasised enough
how deeply rooted in the separation of powers the British Constitution is
while being mostly unwritten. Parliament makes the laws, and the judiciary
interprets them.

Merits of separation of power

The theory of separation of powers in its strictest form is considered
undesirable and unworkable. As a result, it is not entirely acknowledged in
any nation on earth. However, its importance resides in emphasising the
checks and balances that are required to avoid abuse of the vast executive
powers.

Functional overlap among organs of the

government

Overlapping powers of Legislature

With the Judiciary

1. Impeachment and dismissal of judges
 2. Authority to revalidate legislation that the Court had deemed ultra
vires and amend them.
3. If its privilege is violated, it has the authority to penalise the
offending party.

With the Executive

1. Members of the legislature serve as the leaders of each
governmental ministry.
2. It can dissolve the government with a vote of no confidence.
3. The ability to evaluate the executive’s job.
4. President’s impeachment.
5. Members of the legislature are chosen to the council of ministers, on
whose advice the President and Governor act.

Overlapping powers of Executive

With the Judiciary

1. Selecting candidates for the Chief Justice and other judicial
positions.
2. The authority to commute sentences, reprieves, respites, or pardons
for those found guilty of crimes.
3. The tribunals and other quasi-judicial organisations of the executive
carry out judicial duties as well.

With the Legislative

1. The authority to enact an ordinance that carries the same weight as
a law passed by the state legislature or the parliament.
2. Subject to the limitations of this Constitution, they have the power to
enact rules governing their particular process and conduct of
business.
3. Powers are granted by a delegated law.
Overlapping powers of Judiciary

With the Legislative

1. The Supreme Court serves as an Executive under Article 142 in
order to ensure full justice.

With the Executive

1. Legal review, or the authority to examine executive action to see if
the Constitution is being violated.
2. The basic structure of the Constitution cannot be changed.

Conclusion
“Power corrupts and absolute power tends to corrupt absolutely” – Lord Action.
Exercising the doctrine of separation power cannot be applied in the strict
sense in any contemporary countries like The United States, Nepal, France
etc. But still, this doctrine has relevancy nowadays. Our government is an
organized system and it is very difficult to divide into watertight
compartments.

For the smooth functioning of any government, cooperation and coordination

among all three wings of the government are necessary. Professor Garner
said that “this doctrine is impracticable as working principle of Government.
It is difficult to divide the functions of each organ on an accurate basis”.

Although liberty heavily depends on the balance between the three branches
of government, increased concern for welfare and security has resulted in the
transfer of greater authority to the executive. The liberty of the individual, as
well as that person’s wellbeing and the security of the state, should all be
equally important in a perfect society. Without a question, this would
necessitate a strong government, but it would also necessitate a system of
checks and balances and the division of powers.

In my opinion, this doctrine has a great significance as it protects the liberty

of the individual from the arbitrary rule and prevents the organs from
usurping the essential functions of other organs.

It is applicable in almost all countries up to a certain extent.