Separation of powers in administrative law in India

The separation of powers is based on the principle oftriaspolitica, 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 oflaw.

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.

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Separation of Powers in India

The doctrine of separation of powers has not been accorded a Constitutionstatus. Apart from the directive principles laid down in Article 50 of the constitution which sets outseparationof judiciary from the executive functions, the constitutional schemes do not embody any dogmatic division of powers.

Inthe IndianConstitution, 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.

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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.

In Kartar Singh v.Stateof 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.StateofPunjab,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.”

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In Delhi Development Authority v M/s UEE Electricals Engg. Pvt. Ltd, the Supreme Court made the observationthat“One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The firstgroundis “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 isseparationof powers in a broad sense only.

Therefore, inconclusion,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.

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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 powermay bevery 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 be very difficult to follow completely a compromised version of it is used in our country.

The separation of powers is based on the principle oftriaspolitica, 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 oflaw.

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.

Connect with an expert lawyer for your legal issue

Separation of Powers in India

The doctrine of separation of powers has not been accorded a Constitutionstatus. Apart from the directive principles laid down in Article 50 of the constitution which sets outseparationof judiciary from the executive functions, the constitutional schemes do not embody any dogmatic division of powers.

Inthe IndianConstitution, 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.

Consult:Top Civil Lawyers in India

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.

In Kartar Singh v.Stateof 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.StateofPunjab,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.”

Connect with an expert lawyer for your legal issue

In Delhi Development Authority v M/s UEE Electricals Engg. Pvt. Ltd, the Supreme Court made the observationthat“One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The firstgroundis “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 isseparationof powers in a broad sense only.

Therefore, inconclusion,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.

Connect with an expert lawyer for your legal issue

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 powermay bevery 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 be very difficult to follow completely a compromised version of it is used in our country.

Advocate Chikirsha Mohanty

Greater Kailash - 1, Delhi

All Articles by Advocate Chikirsha Mohanty >>

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