Separation of Powers and Administrative Law

By | May 7, 2019
Separation of Powers

The doctrine of Separation of Powers is of ancient origin. The history of the origin of the doctrine is traceable to Aristotle. In the 16th and 17th Centuries, French philosopher John Bodin and British Politician Locke respectively had expounded the doctrine of separation of powers. But it was Montesquieu, French jurist, who for the first time gave it a systematic and scientific formulation in his book ‘Esprit des Lois’ (The spirit of the laws).

Montesquieu’s view

Montesquieu said that if the Executive and the Legislature are the same person or body of persons, there would be a danger of the Legislature enacting oppressive laws which the executive will administer to attain its own ends, for laws to be enforced by the same body that enacts them result in arbitrary rule and makes the judge a legislator rather than an interpreter of law. If one person or body of persons could exercise both the executive and judicial powers in the same matter, there would be arbitrary powers, which would amount to complete tyranny, if the legislative power would be added to the power of that person. The value of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the concentration of powers in one person or body of persons. The different organs of government should thus be prevented from encroaching on the province of the other organ.

Position in the United States

This theory has had a different application in France, USA and England. In France, it resulted in the rejection of the power of the courts to review acts of the legislature or the executive. The existence of separate administrative courts to adjudicate disputes between the citizen and the administration owes its origin to the theory of separation of powers. The principle was categorically adopted in the making of the Constitution of the United States of America. There, executive power is vested in the president. Article 1 of the constitution of America vests the legislative power in Congress and the judicial power in the Supreme Court and the court’s subordinates thereto. The President is not a member of the Congress. He appoints his secretaries on the basis, not of their party loyalty but loyalty to himself. His tenure does not depend upon the confidence of the Congress in him. He cannot be removed except by impeachment. However, the United States Constitution makes a departure from the theory of strict separation of powers in this that there is provision for judicial review and the supremacy of the ordinary courts over the administrative courts or tribunals.

Position in Britain

In the British Constitution, the Parliament is the supreme legislative authority. At the same time, it has full control over the Executive. The harmony between the Legislator and the (Executive) is secured through the Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime Minister is the head of the party in the majority and is the Chief Executive authority. He forms the Cabinet. The Legislature and the Executive are not quite separate and independent in England, so far as the Judiciary is concerned its independence has been secured by the Act for Settlement of dispute which provides that the judges hold their office during good behaviour, and are liable to be removed on a presentation of addresses by both the Houses of Parliament. They enjoy complete immunity in regard to judicial acts.

Position in India

In India, the executive is part of the legislature. The President is the head of the executive and acts on the advice of the Council of Ministers. {Article 53 and 74 (1)}. He can be impeached by Parliament. Article 56 (1) (b) read with Article 61, Constitution. The Council of Ministers is collectively responsible to the Lok Sabha {Article 75 (3)} and each minister works during the pleasure of the President. {Article 75 (2)} If the Council of Ministers loses the confidence of the House, it has to resign.

Functionally, the President’s or the Governor’s assent is required for all legislation. (Article 111, 200 and 368). The President or the Governor has the power of making ordinances when both Houses of the legislature is not in session (Article 123 and 212). An ordinance has the same status as that of a law of the legislature. (AK Roy v Union of India, AIR 1982 SC 710) The President or the Governor has the power to grant pardon. (Articles 72 and 161) The legislature performs judicial function while committing for contempt those who defy its orders or commit breach of privilege (Articles 105 (3) 194 (3) Thus, the executive is dependent on the Legislature and while it performs some legislative functions such as subordinate, it also performs some executive functions such as those required for maintaining order in the house.

There is, however, a considerable institutional separation between the judiciary and the other organs of the government. (See Art 50)

The Judges of the Supreme Court are appointed by the President in consultation with the Chief justice of India and such of the judges of the Supreme Court and the High Court’s as he may deem necessary for the purpose. (Article 124 (2))

The Judges of the High Court are appointed by the President after consultation with the Chief Justice of India, the Governor of the state, and, in the case of appointment of a judge other than the Chief justice, the Chief Justice of the High Court. (Article 217 (1))

It has now been held that in making such appointments, the opinion of the Chief justice of India shall have primacy. (Supreme Court Advocates on Record Association case) The judges of the High Court and the judges of the Supreme Court cannot be removed except for misconduct or incapacity and unless an address supported by two-thirds of the members and an absolute majority of the total membership of the House is passed in each House of Parliament and presented to the President. {Article 124 (3)} An impeachment motion was brought against a judge of the Supreme court, Justice Ramaswami, but it failed to receive the support of the prescribed number of members of Parliament. The salaries payable to the judges are provided in the Constitution or can be laid down by a law made by Parliament. Article 125 (1) and Art 221 (1).

Every judge shall be entitled to such privileges and allowances and to such rights in respect of absence and pension, as may from time to time be determined by or under any law made by Parliament and until so determined, to such privileges, allowance and rights as are specified in the Second Schedule. Neither the privileges nor the allowance nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

Appointments of persons to be, and the posting and promotion of, district judges in any state shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such state. (Article 233) The control over the subordinate courts is vested in the acts of the Legislature as well as the executive. The Supreme Court has the power to make rules (Article 145) and exercises administrative control over its staff. The judiciary has the power to enforce and interpret laws and if they are found in violation of any provision of the Constitution, it can declare them unconstitutional and therefore, void. It can declare the executive action void if it is found against any provisions of the Constitution. Article 50 provides that the State shall take steps to separate the judiciary from the executive.

Thus, the three organs of the Government (i.e. the Executive, the Legislature and the Judiciary) are not separate. Actually, the complete demarcation of the functions of these organs of the Government is not possible.

The Constitution of India does not recognize the doctrine of separation of power in its absolute rigidity, but the functions of the three organs of the government have been sufficiently differentiated. (Ram Jawayya Kapoor and ors. v. State of Punjab, AIR 1955 SC 549) None of the three organs of the Government can take over the functions assigned to the other organs. (Kesavananda Bharti v. State of Kerala; AIR 1973 SC 1461, Asif Hameed v. State of J&K; 1989 AIR, SC 1899)

In State of Bihar v. Bihar Distillery Ltd., (AIR 1997 SC 1511) the Supreme Court has held that the judiciary must recognize the fundamental nature and importance of the legislative process and must accord due regard and deference to it. The Legislative and Executive are also expected to show due regard and deference to the judiciary. The Constitution of India recognizes and gives effect to the concept of equality between the three organs of the Government. The concept of checks and balance is inherent in the scheme.

By – Mayank Shekhar,

Faculty of Law, University of Law

Sources:

1) Administrative Law by I.P. Massey, Eastern Book Company, 8th Edition

2) SCC Online


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