“SEPARATION OF POWER IN INDIAN

ADMINISTRATIVE LAW”

Submitted by

RAVI SHANKAR .M

Reg. No. BC0170040

Under the Guidance of

Mr. SUBAJITH
Assistant Professor

TAMIL NADU NATIONAL LAW UNIVERSITY

(A State University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu – 620 009
 INDEX

SYNOPSIS……………………………………………………………..3

INTRODUCTION……………………………………………………..4

MONTESQUIEU’S IDEA…………………………………………….4

PROS AND CONS………………………………………………….…5

IMPORTANCE OF THE DOCTRINE………………………………6

SEPARATION OF POWER IN DIFFERENT COUNTRIES………6

U.S.A.

U.K.

INDIA

ORGANS OF GOVERNMENT IN INDIA…………………………….8

EXECUTIVE

LEGISLATIVE

JUDICIARY

FLEXIBLE SEPARATION OF POWER IN INDIA…………………….8

CONCLUSION……………………………………………………………...13

BIBLIOGRAPHY………………………………………………………….13
 SYNOPSIS
RESEARCH OBJECTIVE:
 To analyze whether the flexible separation of powers is apt for India
 To examine about the advantages and disadvantages of separation of power for a society like India.
 To compare the separation of power in India with that of other countries

RESEARCH QUESTIONS:

 What are all the main difference between the method of separation of power in India that of other
countries?
 Does the combined form of three organs in certain places is essential for societies nowadays?
 What are the importance, advantages and disadvantages of the separation of power?

RESEARCH METHODOLOGY:

The methodology used in this particular article are basically secondary data which were collected from the
internet, books, articles and blogs. These data collected was used to do a study on the separation of powers in
India and a comparison of that with the administrative law. This research paper would basically deal with the
aspects of the issues mentioned above.

TENTATIVE CHAPTERISATION:

CHAPTER I:

This chapter is going to talk about the introduction and going to explain about the separation of powers
briefly

CHAPTER II:

This chapter is going to explain about the historical background of the separation of power and nature and
meaning of principle and the judicial opinion on the doctrine of separation of power and also its
constitutional provisions, if any.

CHAPTER III:

This chapter talks about the advantages and disadvantages of separation of powers in current situation and
going to compare the flexible condition of separation of power in India with that of rigid separation of
power in countries like US.

CHAPTER IV:

This chapter is going to relate the separation of powers with administrative laws and also going to analyze
about how the separation of power acts as a limitation on administrative laws.

CHAPTER V:

This chapter concludes the paper by giving my view of points about its future direction and certain points
which I can suggest regarding the separation of powers.
INTRODUCTION:

Separation of power is nothing but dividing up the powers of nations, so that they gather up and form
a single and huge power. This idea arises when people had a thought or idea that the government will
work best when its powers are not concentrated in a single authority, but divided among various
forms or branches. In many countries, the government powers were mainly divided into three:

 Legislative - the power to make law

 Executive - the power to enforce law
 Judicial - the power to interpret the law

The United States of America was the first country or nation that used a written constitution to
formally adopt separation of power as the framework for its government. The origin of the idea of
separation of powers was called as the European Enlightenment during that period. This
Enlightenment began in the 17thcentury and lasted until shortly before the beginning of the American
Revolution1.

MONTESQUIEU’S IDEA:
Montesquieu was the one who clearly talks about the separation of powers and its impact in the
future society. According to Montesquieu, if the executive body and the legislature body are the
same, there would be a danger of the legislature enacting oppressive laws which the executive will
administer to have its own end. He further said that if one person or body of persons could exercise
both the executive and judicial powers, there would be arbitrary power which would amount to
complete tyranny and there would be no objectivity of law’2.

“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 cause of individuals”.

-Montesquieu

1
Sathe S.P., Administrative Law, LexisNexis Butterworths, New Delhi, 7 th Ed.
2
Aldar John, Constitutional and Administrative Law, Palgrave Macmillan, New York, 6 th Ed.
According to Montesquieu, the doctrine of separation of powers means that no one person or body
should be vested with all three types of power. There must be a division of functions on the
following basis:
 The legislature should make laws but not administer or enforce them,
 The executive must administer the laws made but neither influence the legislature in the
making laws nor stand in judgment of the making laws.
 The judiciary must determine rights and uphold justice without taking over the functions of
law-making or administration.
He further said that such separation is necessary in order to ensure that justice does not become
arbitrary and capricious. He also thought that the principle implies that each organ should be
independent of the other and that no organ should perform functions that belong to the other.

PROS AND CONS3:

Advantages
There are various advantages in Separation of powers. They are as follows:

 The time consumption for each and every will be decreased as the efficiency of the organs of
state increased due to separation of powers.
 As many persons will be experts in their parts, they will be able to handle the problems easily
and without other’s dependence.
 Division of skill and labour occurs as there is a division of work.
 Due to division of work, there will be no overlapping in the system and hence nobody
interfere with others working area.
 Since the overlapping was removed, there is no possibility of the competition in between
different organs or bodies.

Disadvantages
Nothing in this world which have its own advantages will exist without having their own
disadvantages. Such disadvantage of this doctrine are mentioned below:

 Because of the overlapping between rights of the organs, sometimes they may fight for the
supremacy over each other.

3
Article by ‘AmanChhibber, Gujarat National Law University.’
  There is also a possibility of competition between organs again for proving ones supremacy
over the other organ.
 There is also possibility of delay of process because there will not be any supervisor over
other hence the actions of the organs can become arbitrary.

IMPORTANCE OF THE DOCTRINE

The doctrine of separation of power is so rigid in the countries where it is followed which make
many other countries not accepting it. The main object as per Montesquieu in the Doctrine of
Separation of Power is that there should be no abuse of power and mainly the power should be with
the administrative rather than legislative bodies. Also another most important feature of separation of
power is that there should be independence of judiciary, which makes the justice to be delivered
properly. The judiciary is the scale through which one can measure the actual development of the
State. If the judiciary is not independent, then it is the first step towards a tyrannical form of
government4. Hence the Doctrine of Separation of Power does play a vital role in the creation of a
fair government and also fair and proper justice is dispensed by the judiciary as there is
independence of judiciary.

SEPARATION OF POWER IN DIFFERENT COUNTRIES:

U.S.A.

The doctrine of separation of powers was originated in US.A. It forms one of the basis of the
American constitution. Art. I comprises about the legislative power in the Congress; Art. II talks
about the executive power in the President and Art. III comprises the judicial power in the Supreme
Court. The framers of American constitution thought that the principle of separation of powers
would help to prevent the rise of tyrannical form of government as it controls the abuse of powers by
one group alone. The doctrine of separation of power prevents any organ from becoming supreme
and powerful.

In U.S., the Constitution incorporates certain exceptions to the principle of separation with a view to
introduce system of checks and balances. For example, a bill passed by the Congress may be vetoed
by the President whether to come into existence or not and if the President makes a treaty, it should
be approved by thesenate. The Supreme Court can declare the acts passed by the congress as

4
http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html
unconstitutional. There are also other functions of an organ, which can be and are exercised by the
other organs.While seeing the above points, it can be noted that though these organs were separated,
it is interrelated in certain matters and they depend on each other in such situations. India, too,
followed U.S. in adoption of the checks and balances which make sure that the any one of the organs
doesn’t have the powers absolutely5.

This means that functioning of one organ is checked or balanced by the other organ to an extent so
that no organ may misuse the power.

U.K.

U.K. follows a parliamentary form of government. In U.K, the Crown is the Nominal head and
theParliament performs the legislative power. The existence of a cabinet system contradicts the
doctrine of separation of powers completely because the Cabinet which is the real executive head as
the Crown is only a nominal head. The cabinet initiates legislations, it also controls the legislature
and it has the power to dissolve the assembly. As the cabinet in U.K. holds more than one power, this
nation denies the idea of separation of powers

INDIA

India has three organs through which the will of the people are expressed and manages the growth of
the nation. These three organs of the government are:

 Legislative organ -state makes laws

 Executive organ -enforces law
 Judiciary organ-applies law

Each organ interfere in the sphere of working of another organ of the government as a strict
separation of functions is not possible. In certain times, though these organs don’t interfere, they just
overlap with the power of other organ. Thus to control the problems which may arise due to
overlapping or interfere, our country follows flexible separation of powers.

5
I.P. Massey : Administrative Law, Edn. 1970, p. 35.
ORGANS OF GOVERNMENT IN INDIA:

EXECUTIVE:

The Executive power of the Indian nation is vested in the President of India. Article 53, 74, 75, 77,
78, 299, 320, 310 and 311 of the Constitution deals with the executive powers of Presidentand
Articles162, 154 talks about the executive function of the governor within the state.

Article 53 gave all the executive powers in President and authorizes him to exercise these powers
directly by himself or through officer’s subordinate to him.As per this article, the supreme
commander of the defense force is the president and it will be regulated by law.

Under Article 75, The Prime Minister shall be appointed by the President and the other ministers
shall be appointed by President on the advice of the Prime-Minister

Under Article 310, says that every person who is a member of a defense service, or of a Civil Service
of the union, or an All- India Service, or hold any post connected with defense or any civil post
under the union holds during the pleasure of the President.

Article 311 Says - No person who is a member of a Civil Service of the union or an All - India
Service, or a Civil Service of the state or holds a civil post under the union or a state shall be
dismissed, or removed by an authority subordinate to that by which he was appointed.

Under Article 320, President appoints Union Public Service Commission and determines its
functions.

Besides above mentioned powers the President appoints Chief Justice and judges of the Supreme
Court and the High Courts, Attorney - General, State Governor and other high dignitaries of the
State.

Article 154 talks aboutthe executive power of the State is given to the Governor of that particular
state and shall be exercised by him either directly or through officers subordinates to him in
accordance with this Constitution

Under Article 162, states that the executive power of a State shall extend to the power of making
laws.

LEGISLATIVE:
The parliament is capable of making laws subject to the constitutional provisions; which creates that
there is no limitation on the exercise of the legislative power. The parliament can amend laws
prospectively or retrospectively but it cannot declare a judgment delivered by the court to be void.
The main function of both the Houses is to make laws. Every Bill has to be passed by both the
Houses and approved by the President before it becomes law. The subjects over which Parliament
can legislate are the subjects mentioned under the Union List in the 7thSchedule of the Constitution
of India. The principal Union subjects are defense, railways, insurance, communications, banking,
income tax, customs, atomic energy etc.

Apart from the wide range of subjects allotted to it in the 7th Schedule of the Constitution,
even in normal times Parliament can, under certain circumstances, undertake legislative power over a
things which exclusively reserved for the States and for the union.

During the Emergency period in a nation, the Parliament acquires the power to make laws for
the whole or any part of the territory of India with respect to all matters.

JUDICIARY:

The Judiciary is also independent in its own way; there is interference by the executive or the
legislature. The judiciary has the power of judicial review and can declare any laws passed as
ultravires.

Judiciary is independent in its judicial functions and it cannot be interpreted by either by the
executive or the legislature. Constitution says that the discussion about conduct of any judge in the
Parliament is restricted. The High Courts and the Supreme Court has been given the power of
judicial review and they can declare any law passed by parliament as unconstitutional.

The judges of the Supreme Court are appointed by the President in consultation with the Chief
Justice of India and judges of the Supreme Court. The Supreme Court has power to make Rules for
efficient conduction of business.

It is noteworthy that Article 50 of the constitution puts an obligation over state to take steps to
separate the judiciary from the executive.

Taking these facts about the judiciary body into account, some of the jurists are of the opinion that
the doctrine of separation of powers was accepted in the constitution of India in its entirety.
So in Kartar Singh v state of Punjab, it was held that, “The legal sovereign powers has been
distributed between the legislative to make laws, executive to implement the laws and the judiciary
to interpret the laws within the limit set by the constitution.”6

But one careful reading it can be clearly seen that the doctrine of separation of power has not been
accepted in India in the strict sense.

There are no provisions in the constitution regarding the division of functions of government and
their exercise. Only the executive has specific provisions stating about the powers of the state and
union 154(1) and 53(1) respectively. Both judiciary and the legislature do not have specific
provisions in the constitution.

FLEXIBLE SEPARATION OF POWER IN INDIA:

The Indian constitution, like American constitution have mentioned the executive power of the
president and governor respectively under the articles 53(1) and 154(1), there is provisions regarding
the legislative and judicial powers of any particular organs, which makes that there is no rigid
separation of powers.

Though the Indian constitution has flexible separation of powers, Judiciary is independent in its field
and there is no restraint in its judicial functions by any other organs. Indian Constitution restricts the
discussion about the conduct of any court judge in the Parliament as to maintain its independence.
The High Courts and the Supreme Court can declare any law passed by parliament as
unconstitutional by their judicial review7.

Though it is unenforceable as it is a DPSP, Article. 508 of the constitution puts an obligation over
state to take steps to separate the judiciary from the executive.

Certain Constitutional Provisions also gave the powers, privileges and immunities to the M.Ps.
thereby making legislature independent, in some form. The Constitution Talks about the executive
power of the President9. His powers and functions were enumerated in the constitution.

Though in certain areas, if we think that India has a rigid form of government, certain provisions and
incidents make us to confirm that India only has a flexible form of government like the executive is

6
(1994)3 SCC 569
7
Article by ‘SoahamBajpai’ on Judicial appointment in India: Constitutional provisions.
8
Article 54, constitution of india.
9
Gupta.V.P , The President Role in ‘Times of India’ on January, 2012.
considered as a part of the legislative when we notice that the executive is responsible to the
legislature for its actions as it derives its authority from the Legislature.

The main reason for the flexible form of separation is that the India is a parliamentary form of
government India. The parliamentary form makes these organs to have a connection with each other.

This was clearly explained by the SC in the re Delhi laws act case, that the separation of powers is
not a part of our constitution in the ratio of 5:2 in a seven bench judgement.

As Kania, C.J., observed-

“Although in the constitution of India there is no express separation of powers, it is clear that a
legislature is created by the constitution and detailed provisions are made for making that legislature
pass laws. Does it not imply that unless it can be gathered from other provisions of the constitution,
other bodies-executive or judicial-are not intended to discharge legislative functions?
In essence they imported the modern doctrine of separation of powers. While dealing with the
application of this doctrine, it is quintessential to mention the relevant cases which clarify the
situation further.”10

USE OF CERTAIN POWERS BY OTHER ORGANS:

Executive Exercise of:

Some of the action of the executive clearly shows that the executive interferes with the actions of the
other organs.

 Legislative Powers:
The President has a wide Legislative power, Articles 123 and 356, and is competent to make
laws for the state after the legislature has been dissolved. Such an exercise of legislative
function is immune from the judicial review.

 Judicial Powers;
The president performs judicial functions also, he decides disputes regarding the age of
judges of the Supreme court and High courts, according to articles 124(2-A) and 217(3)
respectively.

10
1951 AIR 332, 1951 SCR 747
Parliamentary Exercise of:

The parliament also has some of the functions of the other organs of the government.

 Executive Powers:
The parliament delegates the power to make laws to the executive, at certain situations, it this
is done in order to reduce the overburden upon the legislature. Such a method of delegating
the power of the legislature to the executive is called delegated or subordinate legislation.

 Judicial Powers:
Parliament exercises judicial functions also. For eg: it can decide the question as to the breach
of its privileges and the parliament also has the powers to punish the offender to such
privileges according to Article 105.

The proceeding as to the impeachment of the President is initiated in the parliament, where
one house acts as the investigator and the other acts as the prosecutor and decides the matter,
whether proved or not, this is purely a judicial function.(Article 61).

Judicial Exercise of:

The judiciary exercises both executive and legislative functions.

 Executive Powers:
According to the Article 227, The High court has the powers over all the subordinate courts
and tribunals. They also have the power to transfer cases from a lower tribunal to a higher
tribunal.

 Legislative Powers:
The Supreme Court and the High court have the powers to frame rules regarding their own
procedure for the conduct and disposal of cases according to the Articles 145 and 225.

They also have the powers to invalidate the laws passed by the parliament.

So from all this we can come to a conclusion that this Doctrine has not been adopted strictly.

In the case of Ram Jawaya v State of Punjab11, it has been held that, “The Indian Constitution
has not indeed recognised the Doctrine of Separation of Powers in its absolute rigidity.”

11
(1955)2 SCR225
In the case of Indira Nehru Gandhi v Raj Narain12, Justice Beg observed that, “Separation of power
is a part of the basic structure of the constitution, none of the three organs of the republic can take
over the functions assigned to the others. This scheme of the constitution cannot be changed even by
resorting to Article 368of the constitution.”

CONCLUSION:

Doctrine of Separation of power in today’s context of liberalization, privatization, and globalization

cannot be interpreted to mean either ‘Separation of Powers’ or ‘Check and Balance’ but ‘Community
powers’ exercised by the spirit of co-operation by various organs of the state in the best interest of
the people.

BIBILOGRAPHY:

ARTICLES

 Article by ‘SoahamBajpai’ on Judicial appointment in India: Constitutional provisions.

 Article by ‘AmanChhibber, Gujarat National Law University.’

BOOKS

 Sathe S.P., Administrative Law, LexisNexis Butterworths, New Delhi, 7th Ed.
 Aldar John, Constitutional and Administrative Law, Palgrave Macmillan, New York, 6th Ed.
 I.P. Massey : Administrative Law, Edn. 1970, p. 35.
 Gupta.V.P , The President Role in ‘Times of India’ on January, 2012.

WEBSITES

http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html

CASE LAWS

 (1994)3 SCC 569

 1951 AIR 332, 1951 SCR 747
 (1955)2 SCR225
 AIR 1975 SC 2299

PROVISIONS

12
AIR 1975 SC 2299
 Constitution of India