Separation of Powers | Administrative Law - CLAT PG PDF Download

Introduction

Importance of the Doctrine of Separation of Powers

• The fundamental purpose of the doctrine of separation of powers is to establish distinct centers of power within governance to prevent any one branch from becoming tyrannical.
• It aims to safeguard against the arbitrary and tyrannical actions of the state. The rationale behind this doctrine is that concentrating all power in a single organ or individual poses a risk of enacting oppressive laws, executing them despotically, and interpreting them arbitrarily without external oversight.
• The doctrine of separation of powers is grounded in four key principles:
  • Exclusivity principle: Advocates for a structural division among the three branches of government, similar to the system in the USA.
  • Functional principle: Prohibits the amalgamation and usurpation of powers among the branches while allowing for their interaction.
  • Check and balance principle: Each branch has the authority to check the others to ensure they operate within constitutional limits.
  • Mutuality principle: Aims to foster cooperation and engagement among the branches to create a society that embodies constitutional values, such as freedom, equality, inclusivity, and the rule of law.
• The doctrine can be understood in two senses:
  • Negative sense: Imposes limits on the power exercised by each branch of government.
  • Positive sense: Not only delineates limits but also defines the minimum contents of power within those limits, which courts can enforce to uphold constitutional values.

Doctrine of Separation of Powers in the USA

• The doctrine of separation of powers is implicit in the American Constitution, emphasizing the mutual exclusivity of the three branches of government: legislative, executive, and judicial. Each branch is prohibited from exercising the powers of the other branches.
• In the United States, the government is characterized by a presidential system, where the executive and legislative branches are separate. This contrasts with the parliamentary systems in countries like Britain and India, where the executive is coordinated with the legislature.
• The doctrine of separation of powers has influenced and been influenced by the development of administrative law in the United States. In response to new demands for government action on complex socio-economic issues, new institutions and procedures have emerged, leading to a dilution of strict separation but still impacting the character of administrative law.
• Unlike in Britain, where the Dicean concept of rule of law led to indifference towards administrative law, the separation doctrine in the USA prompted examination and criticism of new developments in administrative law.

Doctrine of Separation of Powers in the United Kingdom

• In the United Kingdom, a form of separation of powers exists, but it is informal and differs from the rigid separation seen in the United States. Blackstone's theory of mixed government with checks and balances is more applicable to the UK system.
• Separation of powers is not a predominant feature of the UK constitution. The three branches of government—executive, legislative, and judicial—are not formally separated and have significant overlap in functions.
• Despite the lack of strict separation in the UK and the US, the doctrine of separation of powers has influenced the design of modern constitutions, particularly during the 19th century. In countries like France, this influence has led to the establishment of special administrative courts to oversee the validity of legislative and administrative actions.

Doctrine of Separation of Powers in India

• In India, the doctrine of separation of powers is not explicitly enshrined in the Constitution, but the functions of different government organs are delineated to prevent one organ from encroaching on the functions of another.
• On the surface, it may appear that the Indian Constitution upholds the doctrine of separation of powers, as executive powers are vested in the President, legislative powers in Parliament, and judicial powers in the Judiciary (Supreme Court, High Courts, and subordinate courts).
• The President's role is defined by the Constitution, and Parliament has broad legislative powers, subject to constitutional provisions. The Judiciary is independent and has the authority to review laws passed by Parliament or state legislatures.
• In the case of "In re Delhi Laws Act," Chief Justice Kaniah noted that while the Constitution does not explicitly separate powers, the legislative function is primarily the responsibility of the legislature, implying that other bodies are not intended to perform legislative functions.
• The Supreme Court, in the "Keshavananda Bharathi" case, stated that separation of powers is part of the basic structure of the Constitution, which cannot be altered by amendments.
• Functional and personal overlapping among the branches of government is common in India. Some jurists argue that the doctrine of separation of powers is accepted in India and is part of the Constitution's basic structure.
• However, a strict separation of powers, as seen in the US or Australian constitutions, does not apply to India. There is functional and personal overlap among the branches, and the absence of explicit separation of powers provisions in the Constitution is notable.
• For instance, the President has significant legislative powers, including issuing ordinances and making laws for dissolved states, and also performs judicial functions related to the retirement of judges.
• Parliament exercises legislative functions but delegates many to the executive and also performs some judicial functions, such as breach of privilege cases and impeachment of the President.
• Judiciary, while primarily exercising judicial powers, also performs executive or administrative functions, such as supervising subordinate courts and framing procedural rules.
• In "Ram Jawaya v. State of Punjab," Mukherjea, J. observed that the Indian Constitution does not rigidly separate powers but differentiates the functions of various government parts, preventing one organ from assuming the functions of another.

Drawbacks

• Historically incorrect: The theory of separation of powers was not present in the British Constitution. England never adopted this doctrine, as noted by Prof. Ullman and the Donoughmore Committee.
• Independence assumption: The doctrine assumes that the legislative, executive, and judicial functions are independent and distinct. However, in reality, these functions are interconnected and not easily separable.
• Practical challenges: If the doctrine is followed strictly, it would create practical difficulties. For example, the legislature would be unable to punish breaches of its privilege, delegate legislative functions to the executive, or the courts would have trouble establishing procedural rules.
• Modern interpretation: Today, separation of powers is understood as a balance between essential and incidental powers. One government organ should not overstep its boundaries but can perform some incidental functions of another organ.
• Goal of liberty: Montesquieu's doctrine aimed for individual liberty and freedom, which cannot be achieved through a strict division of powers. In England, despite not following the separation of powers, individual liberty is protected through the Rule of Law, an independent judiciary, and public vigilance.
• Contemporary context: In the context of liberalization, privatization, and globalization, separation of powers should be viewed as a cooperative exercise of powers among state organs for the people's best interest, rather than strict separation or restraint.