SEPARATION OF POWERS AND ADMINISTRATIVE LAW

MEANING

The concept of separation of powers refers to a system of government in which the powers are divided among multiple branches of the government, each branch controlling different facet of government. In most of the democratic countries, it is accepted that the three branches are the legislature, the executive and the judiciary. According to this theory, the powers and the functions of these branches must be distinct and separated in a free democracy. These organs work and perform their functions independently without the interference of one into others in order to avoid any kind of conflict. It means that the legislative and the judicial powers cannot be exercised by the executive, the executive and judicial powers cannot be exercised by the legislature and the legislative and executive powers cannot be exercised by the judiciary.

OBJECTIVES OF SEPARATION OF POWERS

The following are the fundamental objectives of the doctrine of separation of powers:-

  1. Firstly, it aims to eliminate arbitrariness, totalitarianism and tyranny and promote an accountable and democratic form of government.
  2. Secondly, it prevents the misuse of powers within the different organs of the government. The Constitution of India provides certain limits for each organ of the Government and these organ are supposed to perform their function within such limits. In India, the Constitution is the ultimate sovereign and if anything goes beyond the provisions of the constitution, it will automatically be considered as null, void and unconstitutional.
  3. Thirdly, it keeps a check on all the branches of the government by making them accountable for themselves.
  4. Fourthly, this principle allows all the branches to specialize themselves in their respective field with an intention to enhance and improve the efficiency of the government.

 

ELEMENTS OF SEPARATION OF POWERS

Legislative

The legislative organ of the government is also known as the rule-making body. The primary function of the legislature is to make laws for good governance of a state. It has the authority of amending the existing rules and regulations as well. Generally, the power of making rules and laws are in the hands of the Parliament.

Executive

This branch of government is responsible for governing the state. The executive has the power to implement and enforce the laws which are made by the legislature. The President and the Bureaucrats form the Executive branch of government.

Judiciary

Judiciary plays a very crucial role in any state. It interprets and applies the laws made by the legislature and safeguards the rights of the individuals. It also resolves the disputes within the state or internationally.

 

SEPARATION OF POWERS IN PRACTICE

U.K. Constitution

The United Kingdom practices the unitary parliamentary constitutional monarchy. The concept of separation of powers is applied in the UK but not in its rigid sense because the UK has an unwritten constitution. The Crown is the head of the state whereas the Prime Minister is recognized as the head of the government. The executive and the legislature are somehow interconnected to one another.

The executive powers are exercised by the Crown through his government. Thus, the Crown is the nominal head and the real executive powers vest in the Prime Minister and the other Cabinet Ministers. The UK parliament is bicameral and divided into two houses – The House of Commons and House of Lords. The sovereign rule making body in the UK is the Parliament. The Prime Minister and the other cabinet ministers are also a part of The House of Commons. The government is answerable to the Parliament. Practically, the executive is controlled by the House of Commons. The Judiciary, however, is independent of executive control. But the judges of the Supreme Court can be removed on the address of both the houses if found with any charge of corruption.

Thus, we can conclude that the UK constitution has incorporated the separation of powers just to keep checks and balances among the three organs of the government but there exist some kind of interference of one organ in the other.

U.S. Constitution

The US has a written constitution and governed by the Presidential form of government. The cornerstone of the Constitution of the United States is the doctrine of separation of powers. This concept is well-defined and clear under the American Constitution.

  • Article I – Section 1 of the American Constitution states that –

“Congress has all the legislative powers.”

  • Article II – Section 1 of the American Constitution states that –

“President has all the executive powers.”

  • Article III – Section 1 of the American Constitution states that –

“All the judicial powers are vested in the federal courts and the Supreme Court.”

The President and his ministers are the executive authority and they are not members of the Congress. The ministers are accountable to the President only and not to the Congress. The tenure of the President is fixed and independent of the majority in Congress.

Congress is the sovereign legislative authority. It consists of two houses- Senate and House of Representative. The impeachment of the President can be done by Congress. The treaties entered by the President are to be approved by the Senate. The Supreme Court of the USA is independent.

  1. President interferes in the functioning of Congress by exercising his veto power. He also makes the appointment of the Judges thus, interfering in judicial powers.
  2. Similarly, Congress interferes in the powers of the Courts by passing procedural laws, making special courts and by approving the appointment of the judges.
  3. The judiciary, by exercising the power of judicial review interferes in the powers of Congress and the President.

In Panama Refining Company v. Ryan], Justice Cardozo observed that:-

“The doctrine of separation of power is not a dogmatic concept. It cannot be imposed with strictness. There must be elasticity in its application with respect to the needs of the government. Therefore, a practical approach to this theory is required.”

 

INDIAN CONSTITUTION AND SEPARATION OF POWERS

Like the United Kingdom, India also practices the parliamentary form of government in which executive and legislature are linked to each other. However, the composition of our constitution creates no doubt that the Indian Constitution is bound by the separation of powers. There are various provisions under the Constitution of India which clearly demonstrate the existence of the doctrine of separation of powers. This principle is followed both at the centre and the state level.

 

CONCLUSION

The doctrine of separation of powers must be interpreted in a relative form. In the era of globalization and liberalization, the separation of power has to be expounded in a wider perspective. It should not be curb to the principle of restraint or strict classification only but a group power exercised in the spirit of cooperation, coordination and in the interest of the welfare of the state. Though this doctrine is unfeasible in its rigid perception nevertheless its effectiveness lies in the prominence on those checks and balances which are necessary in order to avert maladroit government and to prevent abuse of powers by the different organs of the government.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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