Administrative Law: With Special Reference to Doctrine of Separation of Powers

THIS ARTICLE WAS WRITTEN BY MONIKA BHAKTA A STUDENT OF LLOYD LAW COLLEGE, GR. NOIDA.

Introduction: Administrative law has been characterized as the most “outstanding legal document of the 20^th century”.[1] It doesn’t mean, however that concept of administration was not in existence in any country before the 20^th century. It is an ancient as the administration itself. Today, the administration impinges freely and deeply on every aspects of individual life. Therefore, administrative law has become a major area for study and research.

In every country, there must be perfect administrative machinery which helps to maintain law and order in the society and also it is an instrument which facilitates the concept of welfare state in the country. The emergence of social welfare concept has affected the democracies very profoundly. It has led to state activism. The functions of modern state may broadly be placed into the following categories: the state as a protector, provider, entrepreneur, economic controller and arbiter. A state consists of three organs- legislative, executive and judiciary. Increase in state activities has meant increased work for all the organs, the largest the extension in depth and the range of functions and powers has taken place at the level of executive –cum-administrative organ. Administration is the all-pervading feature of life today.

Definition: Administrative law is a progressive branch and it is not possible to confine the meaning of administrative process in some words. Many scholars and jurists define the administrative law with their different approaches.

According to American Scholar, Kenneth Culp Davis, “Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action. It does not include the enormous mass of substantive law produced by the agencies”.[2]

According to Sir Ivor Jennings, “Administrative law is a law relating to the administration. It determines the organization, powers and the duties of the administrative authorities”.[3]

A satisfactory and a proper formulation to define the scope, content and ambit of administrative law appears to be as follows- “Administrative law deals with the structure, power and functions of the organs of administration; the limits of their power, the procedure and method in execution of their power and functions; methods to control their powers including the legal remedies available to the person aggrieved in case of infringement of his right. Principles of administrative law emerge and develop wherever and whenever any person becomes the victim of the arbitrary exercise of the public power. Therefore, it will not be incorrect to say that no can specialize in administrative law.[4]

Doctrine of Separation of Powers: The Doctrine of Separation of power is of ancient origin. The history of the origin of the doctrine is traceable to Aristotle in the 16^th and 17^th century. French philosopher John Bodin and British politician Locke respectively have expounded the doctrine of separation of powers. But it was Montesquieu, French jurist who for the first gave it a systematic and scientific formulation in his book ‘Espirit des lois’ (The spirit of the Laws).

Meaning of the Doctrine: According to the M. P. Jain.- “If the ‘Rule of Law’ as enunciated by Dicey affected the growth of Administrative Law in Britain, the doctrine of ‘Separation of Powers’ had an intimate impact on the development of Administrative Law in the U.S.A.”. Davis[5] also stated: “Probably, the principal doctrinal development of Administrative process has been the theory of separation of powers”.

There are three main organs of the government in the state: the Legislature, the Executive, and the Judiciary. According to the theory of the separation of powers, these three are the functions of the government must, in a free democracy, always be kept separate and be exercised by the separate organs of the government. The theory of separation of powers signifies three formulations of structural classification of government powers-

1. The same powers should not form part of more than one of the three organs of the government. For example, Ministry should not sit in parliament.
2. One organ of the government should not interfere with any other organ of the government.
3. One organ of the government should not exercise the functions assigned to the any other organs.

Separation of powers in England:  In England. The first formulation of the theory of separation of powers is negated by the concept of ‘parliamentary executive’ that the same person should form the part of more than one of the three organs of the government. For instances, the king, though an executive head is also integral part of the legislature and all his ministers are also members of one or the other of the house of parliament. As regards the second formulation, it is clear that the House of Commons ultimately controls the executive. The judiciary is independent but the judges of the superior courts can be removed on an address from both Houses of Parliament. As to the exercise by the one organ of the functions of the others organs, no separation exists in England.

Separation of Powers in U.S.A.: In U.S.A. “Separation of Powers” is the foundation of the constitution of America. Article 1 Section 1 vests all legislative powers in the Congress. Article 11 section 1 vests all the executive powers in the President of the United States. Article 111 section 1 vests all the judicial powers in the Supreme Court. However, American constitutional development has shown that in the face of the complexity of the modern governments, strict structural classification of the powers is not possible. The president has veto power through which he can interfere with the exercise of powers by the congress. He can interfere with the functioning of the Supreme Court through the exercise of powers of his power to appoint judges. Congress also interfere with the power of president though vote on budget, approval of appointments by senate and ratification of treaty. Congress also interferes with the exercise of powers by the courts by passing procedural laws, creating special courts and by appointing judges. In its turn, the judiciary interferes with the powers of the congress and the president through the exercise of its power if judicial review.

Separation of Powers in India: 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 enjoins separation of judiciary from the executive, the constitutional schemes does not embody any formalistic and dogmatic division of powers.[6]

The Supreme Court in Ram Jawaya Kapur v. State of Punjab[7], 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 Indira Nehru Gandhi v. Raj Narain Ray,[8]Chief Justice, also observed that in the Indian Constitution there is separation of powers in a broad sense only.

In India, not only is there functional overlapping but there is personnel overlapping also. The constitution has invested the constitutional courts with the power to invalidate laws made by the parliament and state legislature transgressing constitutional limitations. Legislature can re-enact the laws with certain amendments in that law. This new law or the amended law so made can be challenged on the other grounds again but not on the ground that it seeks to in effectuate or circumvent the decision of the court. This is what meant by the ‘checks and balances’ inherent in a system of government incorporating separation of powers.[9]

From the above discussion it becomes clear that the doctrine in its classical sense which is structural rather than functional cannot be literally applied to any modern government because neither the powers of the government can be kept in watertight compartments nor can any government run on strict separation of powers.

Again in Indira Nehru Gandhi v. Raj Narain[10], Justice Chandrachud also observed that the “Political usefulness of the doctrine of the separation of powers is now widely recognized.” No constitution can survive without a conscious adherence to its fine checks and balances. The principles of separation of powers are a principle of restrain which has in it the precept, innate in the prudence of self preservation that discretion is the better part of valour.[11]

In conclusion, “Doctrine of Separation of Powers” in today’s context of liberalizations, privatization and globalization cannot be interpreted to mean either ‘separation if power’ or ‘checks and balances’ or ‘principles of restrain’ but ‘community powers’ exercised in the spirit of cooperation by various organs of the state in the best interest of the people.

[1] Vanderbilts Introduction of Schwartz, French Administrative Law and the Common Law world (viii).

[2] Davis, Administrative Law Text (1959).

[3] Jennings Law and the Constitution, p. 217.

[4] Introduction by Prof. Upendra Baxi.

[5] Administrative law Treaties, 1958 Vol. 1.

[6] Upendra Baxi: Developments in the Indian Administrative Law.

[7] AIR 1955 SC 549.

[8] 1975 Supp SCC1, 260 Paras 686, 688.

[9] P. Kannadasan v. State of T. N. (1996) 5 SCC 670.

[10] 1975 Supp SCC1, 260 Paras 686, 688.

[11] Justice Stone: Social Dimensions of Law and Justice , (1966).