Separation of powers in administrative law in India

The separation of powers is based on the principle of trias politica, which means separation between three independent powers in a 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 is concerned with the 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 refers to the division of powers among different branches of government to prevent the concentration of power, but it is not given a constitutional status. Other than the directive principles laid down in Article 50 of the Indian Constitution, which set out the separation of the judiciary from the executive functions, the constitutional schemes do not embody any dogmatic division of powers. To understand the difference between directive principles and fundamental rights enshrined in the Indian Constitution, refer to LawRato's article “ Difference Between Fundamental Rights and Directive Principles of State Policy.” 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.

No interference is permitted with the actions of the judiciary, which functions independently of the executive and legislature. The Supreme Court and High Courts have been accorded the power of judicial review and are authorised to declare any law passed by Parliament or Legislature as ultra vires or unconstitutional. Considering the above facts, the judiciary has, on numerous occasions, upheld the principle of separation of powers and accommodated the flexibilities of its function. In Kartar Singh v. the State of Punjab, the duties of the executive, judiciary, and legislature were discussed. It was held that according to the fundamentals of the Indian Constitution, the legal sovereign power has been divided between the legislature to make the law, the executive to implement it, and the judiciary to interpret the law within the parameters set down by the Constitution. The Supreme Court in Ram Jawaya Kapur v. the State of Punjab observed that even though the doctrine of separation has not been explicitly recognised in the Indian Constitution, the three branches have different functions, and these functions have been adequately 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 the case of Indira Nehru Gandhi v. Raj Narain Ray, the Chief Justice also emphasised that the separation of powers is only recognised in a broader sense in the Indian Constitution. 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 other's 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

Currently, the separation of powers includes not only 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 that holds power have thus increased, with the media playing a huge role. Therefore, implementing the Separation of Powers doctrine in its absolute terms is extremely difficult in modern society. Since vesting any one organ with too much power may be very dangerous, a system of checks and balances has been 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 take a lot of work to follow completely, a compromised version of it is used in our country.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi
5 years

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