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Separation of Powers under Admin Law

Law (University of Mumbai)

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The separation of powers is based on the principle of trias  politica, which

means separation between three independent powers in nation i.e. Legislature,
Administration and Judiciary. The legislature makes laws, the executive
enforces them and the judiciary applies them to the specific cases arising out
of the breach of law.

Administrative law concerns with powers and procedures of administrative

agencies, including judicial review of administrative action. It does not
include the enormous mass of substantive law produced by the agencies.

Separation of Powers in India

The doctrine of separation of powers has not been accorded a

Constitution status. Apart from the directive principles laid down in Article 50
of the constitution which sets out separation of judiciary from the executive
functions, the constitutional schemes do not embody any dogmatic division of
powers.

In the Indian Constitution, the executive powers are vested with the President,
the legislative powers with the Parliament and the judicial powers with the
judiciary- the Supreme Court, the High Courts and Subordinate Courts. The
President holds his office for a fixed period. His functions and powers are
enumerated in the Constitution itself. Parliament of India is competent to
make any law, subject to the provisions of the constitution and it can also
amend the law prospectively or even retrospectively but it cannot declare a
judgment delivered by a competent court void or of no effect.

The judiciary is independent in its field and there can be no interference with
its judicial functions either by the executive or the legislature. The Supreme
Court and High Courts are given the power of judicial review and they can
declare any law passed by Parliament or Legislature as ultra vires or
unconstitutional.

Taking into account these facts, the judiciary has from time to time upheld the
principle of separation of powers and accommodated the flexibilities of its
function.

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In Kartar Singh v. State of Punjab, it was held “It is the basic postulate under
the Indian Constitution that the legal sovereign power has been distributed
between the legislature to make law, the executive to implement the law and
the judiciary to interpret the law within the limits set down by the
Constitution.”

The Supreme Court in Ram Jawaya Kapur v. State of Punjab, held that:
“Indian Constitution has not indeed recognized the doctrine of separation of
powers in its absolute rigidity but the functions of the different parts or
branches of the governments have been sufficiently differentiated.”

In Delhi Development Authority v M/s UEE Electricals Engg. Pvt. Ltd, the
Supreme Court made the observation that “One can conveniently classify
under three heads the grounds on which administrative action is subject to
control by judicial review. The first ground is “illegality”, the second
“irrationality” and the third “procedural impropriety”.

In Indira Nehru Gandhi v. Raj Narain Ray, the Chief Justice, also observed
that in the Indian Constitution there is separation of powers in a broad sense
only.

Therefore, in conclusion, we see that organs of the state remain separated and
this position of separation of powers doctrine has been upheld by the rulings
made by the courts. No organs can encroach upon the others ambit of powers,
and in case an attempt is made even by way of an amendment it has been
struck down to uphold the basic structure doctrine.

Applicability of the Doctrine in current times

In current times the Separation of Powers not only includes organs such as the
Executive, the legislature and the judiciary but also institutions like the press
and academic institutions. The organs of an open society which hold power
have thus increased with the media playing a huge role. Thus, in a modern
society, implementation of Separation of Powers doctrine in its absolute terms
is an extremely difficult task. Since vesting any one organ with too much
power may be very dangerous, a system of checks and balances has been

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developed over the years, which has even been consistent with many rulings
of the Supreme Court as has been discussed previously. Hence though the
doctrine of separation of powers is a theoretical concept and may be very
difficult to follow completely a compromised version of it is used in our
country.

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