DOCTRINE OF SEPARATION OF POWERS, ADMINISTRATIVE LAW

INTRODUCTION

Generally, accepted that there are three main categories of categories of governmental functions- Legislative, Executive and Judiciary. Likewise, there are three main organs of the Government in a State- Legislative, Executive and Judiciary. According to the theory of “Separation of Power”, these three powers and functions of the Government must, in a free democracy, always be kept separate and be exercised by three separate organs of the Government.

Thus, the Legislature cannot exercise executive or judiciary power, the Executive cannot exercise legislative or judicial power and Judiciary cannot exercise legislative or executive power of the Government. 

HISTORY

ANTIQUITY:

  • The model was first developed in ancient Greece.
  • This model, the state is divided into branches, each with separate and independent powers and areas of responsibility so that the powers of one branch not in conflict with the other branches.
  • The typical division of branches into a legislature, an executive and a judiciary.

ARISTOTLE’S MIXED GOVERNMENT:

  • Aristotle first mentioned the idea of a “mixed government” or hybrid government in his work Politics where he drew upon many of the constitutional forms in the city- states of Ancient Greece.
  • According to Polybius, in the Roman Republic, the Roman Senate, Consuls and the Assemblies showed an example of a mixed government.

MONTESQUIEU’S TRIPARTITE SYSTEM

  • The term, tripartite system is ascribed to French Enlightenment political philosopher Boran de Montesquieu.
  • In “The Spirit of the Law”(1748), Montesquieu described the separation of political power among a legislature, an executive and a judiciary.
  • Montesquieu’s approach was to present and defend a form of government which was not excessively centralized in all its powers to a single monarch or similar ruler.
  • He based this model on the Constitution of the Roman Republic and the British constitutional system.
    • Montesquieu took the view that the Roman Republic had powers separated so that no one could usurp complete power.
    • In the British constitutional system, Montesquieu discerned a separation of powers among the monarch, Parliament and the courts of law.
  • Montesquieu did actually specify that “the independence of the judiciary has to real and not apparent merely”.” The judiciary was generally seen as the most important of powers, independent and unchecked”, and also was considered dangerous.

SAYINGS

  • Madison said that accumulation of all governmental power in the same hands, whether hereditary, self-appointed or elected, was the definition of tyranny.
  • Justice Brandeis explained that this theory was enshrined in the American Constitution:
    • Not to promote efficiency but to preclude the exercise of arbitrary powers.
    • Not to avoid friction among the governmental departments but to save the people from autocracy.
  • Stone says, both as a moral maxim and constitutional principle theory-
    • “Directs us to three rough functional groupings of the jobs and resources involved”.
  • But it does not, as Vanderbilt has shown, envisage of a government into three watertight compartments.

SEPERATION OF POWER IN PRACTICE

UNITED STATES OF AMERICA

This philosophy heavily influenced the writing of the United States Constitution, according to which the Legislative, Executive and Judicial branches of the United States government are kept distinct in order to prevent abuse of power,

This United States form of separation of powers is associated with a system of checks and balances.

UNITED KINGDOM

Although the doctrine of separation of power plays a role in the United Kingdom’s constitutional doctrine, the UK constitution is often described as having ” a weak separation of powers”- A.V.Dicey, despite its constitution being the one to which Montesquieu originally referred.

INDIA

India follows a parliamentary system of government, which offers a clear separation of power.

The judiciary branch is fairly independent of the other two branches. Executive powers are vested with the President and Prime Minister, who are assisted by the Cabinet Secretary and other Secretaries.

But practically the separation of powers does not exist between Legislature and Executive, as Prime Minister is elected by Parliament itself.

Hence in India, there is no separation between Legislature and Executive. All three branches have “checks and balances” over each other to maintain the balance.

DOCTRINE OF ULTRA VIRES

  • This is a Latin phase meaning “beyond power”.
  • If an act requires legal authority and it is done with such authority, it is characterized in law as inter vires meaning “within power”.
  • Acts that are intra vires may equivalently be termed “valid” and those that are ultra vires “invalid”.

OBJECTIVE

  • The value of the doctrine lies in the emphasis on those checks and balances which are necessary to prevent an abuse of enormous powers of the executive.
  • The object of the doctrine is to have “a Government of Law rather than of official will or whim”.
  • Montesquieu’s great point was that if the total power of government is divided among autonomous organs, one will act as a check upon the other and in the check liberty can survive.
  • Almost all the jurists accept one feature of this doctrine that the judiciary must be independent of and separate from the remaining two organs of the government, i.e. Legislature and Executive.

CRITICISM

NO HISTORY:

  • Historically speaking, the theory was incorrect. There was no separation of power under the British Constitution. At no point of time, was this doctrine was adopted in England.
  • As prof. Ullman says, “England was not the classic home of separation of powers”.
  • Donoughmore Committee also observed, “In the British Constitution there is no such thing as the absolute separation or legislative, executive and judicial powers.”

RELATIVE NOT ABSOLUTE:

  • This doctrine is based upon an assumption that the three functions of the government, i.e. Legislative, Executive and Judiciary are independent and distinguishable from one another.
  • In fact, it is not so, there are no watertight compartments and it is not even easy to draw a demarcating line between on power and another with mathematical precision.
  • It is impossible to take certain actions if this doctrine is accepted in its entirety.
  • Thus, if the legislature can only legislate, then it cannot:
    • Punish anyone, committing a breach of its privilege,
    • Nor can it delegate any legislative function (even though it does not know the details of the subject matter of the legislation and the executive authority has expertise over it).
    • Nor could the court frame rules of procedure to be adopted by them for the disposal of cases.

NOT SUITABLE AS MODERN INTERPRETATION:

  • Modern State is a welfare State and it has to solve complex socio-economic problems and in this state of affairs also, it is not possible to stick to the doctrine.
  • The modern interpretation of doctrine means, that discretion must be drawn between ‘essential’ and ‘incidental’ powers and one organ of the Government cannot usurp or encroach upon the essential functions belong to another organ, but may exercise some incidental functions thereof.

DOES NOT FOLLOW OBJECTIVE:

  • The fundamental objective behind Montesquieu’s doctrine was liberty and freedom of an individual, but it cannot be achieved by mechanical division of functions and powers.
  • In England, theory of Separation of Powers is not accepted and yet it is known for the protection of individual liberty.
  • Practically, for freedom and liberty, it is necessary that there should be:
    • The Rule of law,
    • Impartial and independent judiciary and
    • Eternal vigilance on the part of the subjects.

DOCTRINE OF SEPARATION OF POWERS IN INDIA

CONCEPT

As Article 53 of the Indian Constitution vests executive power in the President and requires him to exercise that power in accordance with the constitution. Making him the supreme commander of defense forces in accordance with law, it clarifies that it does not-

  • Transfer any state-functions to the President or
  • Prevent Parliament from conferring functions on authorities other than the President.

Although the vesting clause in Article 53 and specific directive in Article 50 on separation of judiciary from the executive echo the compulsions of the theory of separation of powers.

EMERGENCE

  • The constituent assembly and the Supreme Court in early cases have denied, a place of this theory under the Constitution.
  • As amendment of Prof. K.T.Shah read, “there shall be complete separation of powers between the principal organs of the state”, has sought to smuggle in the Presidential form of government through incorporation of this doctrine of separation of power.
  • The constituent assembly rejected separation of powers with a view to reject the Presidential form of Government.

CASES

  • In Ram Jawaya case, Supreme court held that constitution had a place for separation of functions and not for separation of power. Although, it didn’t consulted the constituent Assembly.
  • In Jayantilal V F.N.Ranan, it reaffirmed this proposition from above case.
  • In Chandra Mohan V sate of UP, following above cases, it noted that Article 50 had provided for an independent judiciary.
  • In Bharti (Kesavananda Bharti) case, it was held without any discourse on any of these cases that separation of power was a part of Basic feature of the Constitution which the Constituent Authority was not competent to abrogate.

CONTRIBUTION OF CASES

  • Ram Jawaya case-
    • Had once denied the room for separation of power in the Indian Constitution.
    • Facts of this case:
      • State’s entry into the textbook, trade did not violate any one’s right.
      • No authority of law was necessary for entry into such trade.
    • Court:
      • Upheld, state’s entry into the trade without the authority of law.
      • Court’s decision was on the ground that, any executive cut in respect of a subject coming within the jurisdiction of the appropriate legislature needed no authority of law.
    • As this proposition was inconsistent with the compulsions of the theory of separation of power, it had to deny a place in the Constitution.
  • Ram Jawaya and Bharti case:
    • Symbolize the dilemma arising out of the original object and present- day function of this theory.
  • Ram Jawaya case, rested on a narrow proposition, its rejection of the theory of separation of power stands discredited.
  • Although Bharti case, coming , later in point of time and decided by large number of judges may be said to have set aside, ”sub-silentio” Ram Jawaya.

WORKING OUT

  • In fifties:
    • Role of separation of power in the Constitution al control of authoritarianism was overlooked.
    • The country and the court had looked upon authoritarianism as an extinct volcano.
  • In mid-sixties:
    • Judge discerned traces of authoritarianism in the body politic.
    • They started for tools to control and contain this phenomenon.
  • In cases:
    • Justice Hidayatullah, in Sajjan Singh, showed a way.
    • In Golaknath, strategy did not click.
    • Therefore, in Bharti case, a new strategy was devised, according to which separation of power emerged as a part of the indestructible basic feature of the Constitution.
    • In Election case, Justice Mathew, brought focus-
      • Into the utility and usefulness of the theory.
      • Utilizing theory’s usefulness in preventing a political party, contracting ll power in one branch of the government, using:
        • Ambitiousness of power,
        • Hatred of liberty and
        • Contempt of law.
      • This theory, not a mere philosophical concept but a practical work-a-day principle.

CONCLUSION

  • The original object and the modern function of this theory can live together for the betterment.
  • As far India is concerned, as long as authoritarianism is a rumbling volcano, separation of power as a basic feature of the Constitution will be relevant and necessary.
  • The limitations and controls on delegation of power draw their inspiration from this theory.
  • The concept of welfare state has not rendered necessary concentration of all power in one branch of the government or a total abdication of legislative power to the executive.

COMMENT

If our Constitution embodies the theory of separation of powers, it is necessary for our purpose to define executive power. In Halsbury’s Laws of England it is said that:

“Executive functions are in capable of comprehensive definition, for they are merely the residue of the functions of government after legislative and judicial functions have been taken away”.

BIBLIOGRAPHY

Administrative Law by Pallavi Bhogle.

Introduction to Administrative Law by Datius Didace.

Book: Constitutional Law of India, volume 1, M. Hidayatullah.

Unknown's avatar

Published by FARHEEN DHANJAL

I am besides being a self-help writer and podcaster am a lawyer as well. I sense an intense inclination towards the power of words; their placing, usage moreover the power of interpretation they possess in law as well as philosophy. My writings are an outcome of great mind processing, notion understanding, and articulation skills as I write: – Concrete and straightforward, – Therapy and self-help, and – Professional and guidance.

Leave a Comment