“SEPARATION OF POWER IN INDIAN

ADMINISTRATIVE LAW”

Submitted by

RAVI SHANKAR .M

Registration Number: BC0170040

Under the direction of

Mr. SUBAJITH

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 method used in this particular article is basically the secondary data collected from the Internet, books,
articles and blogs. The data collected was used for an analysis of the separation of power in India and
compared to the administrative law. This research article is based on the features of the above mentioned
problems.

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 the 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 separation of powers with administrative laws and also going to analyze
about how 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 a 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 and legislative bodies are the same, there
will be a risk of legislative legislation to pass legislation that fulfills the executive power. He added:
"If a person or person can use both the body administration and judicial powers, there will be a
spontaneous power that gives the whole of tyranny2.

“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, 7th 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 influences the legislature in the
making laws nor stand in judgment of making laws.
 The judiciary must determine rights and uphold justice without taking over the functions of
law-making or administration.
He said that such a separation is necessary to ensure that justice is not more spontaneously and
capricious. That each member should be free from others and that no element of the other should act.

PROS AND CONS3:

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

 The time consumption 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 labor occurs as there is a division of work.
 Due to the division of work, there will be no overlapping in the system and hence nobody
interferes 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 disadvantages of this doctrine are mentioned below:

 Because of the overlapping between the rights of the organs, sometimes they may fight for
the supremacy over each other.
 There is also a possibility of competition between organs again for proving ones supremacy
over the other organ.

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

THE IMPORTANCE OF 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 the judiciary, which makes 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 for a tyrannical form of
government4.Therefore, the principle of separation has a significant role in creating a legitimate
government, and judicial independence is provided by fair and proper justice and judiciary.

SEPARATION OF POWER IN DIFFERENT COUNTRIES:

U.S.A.

The doctrine of separation of powers was originated in US.A. It forms the basis of the American
constitution. Article I comprises about the legislative power of the Congress; Article II talks about
the executive power of the President and Article III comprises the judicial power in the Supreme
Court. The framers of the 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 in a view to
introduce system of checks and balances. For example, a bill passed by Congress may be voted by
the President for bringing into existence or not, and if the President makes a treaty, it should be
approved by the state. The Supreme Court can declare the acts passed by the congress as
unconstitutional. There are also other functions of an organ, which are exercised by 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

4
http://www.pucl.org/Topics/Law/2006/seperation-of-powers.html
the U.S. in adoption of the checks and balances which make sure that 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 politics. In the U.K, the crown is a nominal leader and
parliament holds legislative power. There is a cabinet structure that contradicts the doctrine of
separating powers. The cabinet law controls the legislature and has the power to disperse the
assembly. U.K. Since the Cabinet has more than one authority, the country refuses to divide the
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 organs - state makes laws

 Executive organs - enforces law
 Judiciary organs - applies law

Each organ interferes 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 organs. Thus to control the problems which may arise due to
overlapping or interfere, our country follows the flexible separation of powers.

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 President and
Article 162, 154 talks about the executive function of the governor within the state.

5
I.P. Massey : Administrative Law, Edn. 1970, p. 35.
Article 53 gave all the executive powers of the President and authorizes him to exercise these powers
directly by himself or through the 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 of the Act, the Prime Minister is appointed and appointed by the President on the
advice of the Prime Minister.

Any person who is a member of the security service or a civil service of the union or a member of an
all-India service, or any post of security or any civil office shall be entrusted to any post. The
President is happy.

Article 311 states that a civil servant member of a union or a civil service in the state or state of the
Union or a civil post under trade union or state shall not be held or removed;.

Under Article 320, the President appoints the 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 of the Executive Order of the State is issued to the Governor of the State concerned,
either directly or indirectly by the subordinate authorities under this Constitution.

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

LEGISLATIVE:

Parliament is capable of enacting laws subject to constitutional provisions; there is no limit to

the implementation of legislative power. Parliament can reverse or revise the laws, but it cannot be
proved by a court ruling. The main function of houses is to create laws. Each bill and two houses
must be executed, which the President must recognize before the law. The Parliament may enact the
subjects mentioned in the Union List on the 7th Schedule of the Constitution of India such as Union
Schools Security, Railways, Insurance, Communications, Banking, Income Tax, Customs and
Atomic Energy etc.
 In the 7th Schedule of the Constitution, in exceptional circumstances, the Parliament can
legislate under certain provisions, separately, between the States and the Union, in exceptional
circumstances.

In a state of emergency in a country, Parliament has the power to create laws for any part of
the country or to any part of the country to suit 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.

The judiciary is independent of its judicial process, which can not be understood or understood by
the executive or the legislature. The constitution says that the debate on any judge in parliament has
been banned. The High Courts and Supreme Court have been given a judicial review. They can
declare any legislation constituted by the Parliament.

The President is appointed by the Supreme Court Judges, Chief Justice and Supreme Court Judges.
The Supreme Court has authorized the creation of rules for conducting business effectively.

It is noteworthy that the section 50 of the Constitution pays the state's duties to enforce the judiciary
from the Executive Officer.

Some judges consider the fact that the court has accepted these facts about the judiciary and accepted
the principle of extracting power in India's Constitution.

So in the 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

6
(1994)3 SCC 569
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:

According to the Constitution of India, according to the US Constitution, under the articles 53 and 1
(1) and 154 (1), the president and governor mentioned executive power. There are rules regarding the
legal and juridical powers of any particular organs, not the hard separation of forces.

While the division of flexible powers in India's constitution, the judiciary is independent in its field,
and other organs have no restrictions on its judicial process. The Constitution of India restricts the
debate on the conduct of any court judge in Parliament to maintain its independence. High courts and
Supreme Court may declare unlawful law violations by Parliament7.

It is unenforceable as it is a Directive principle of state policy. Article 508 of the Constitution puts an
obligation over the state to take steps to separate the judiciary from the executive.

Certain Constitutional provisions also gave 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.

In some areas, if we consider India to have a strong constitution, some rules and events help us to
ensure that India has a flexible constitution. We consider executive power as part of the legislature.
Executive power is responsible for its actions from receiving power from the legislature.

The main reason for the flexible form of separation is India's parliamentary form of India. The
parliamentary form puts these elements in touch with each other.

This is briefly described in the laws of Delhi laws, and the division of powers is not part of our
Constitution in the judgment of 5: 2.

In Kania, CJ,

"While there is no power to empower the constitution of India, it is clear that a legislature is created
through the constitution, and there are extensive rules for legislation enacting legislation, not

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.
removing other bodies-administrator or judicial-legislative tasks, unless collected from other
provisions of the constitution.

In essence, they distinguished themselves from the modern doctrine. When handling the application
of this theory, it is best to point out the appropriate things that make the situations more clear.”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.

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 powers to punish the offender to such privileges
according to Article 105.

10
1951 AIR 332, 1951 SCR 747
 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 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 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 recognized the Doctrine of Separation of Powers in its absolute rigidity.”

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:

In today’s context of liberalization, privatization, and globalization of doctrine of Separation of

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

11
(1955)2 SCR225
12
AIR 1975 SC 2299
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

 Constitution of India