History and Origin of the Concept
The Doctrine of Separation of
Powers is a crucial component of a constitutional form of government. It first
developed and flourished within the American constitution. Some commentators
have considered its wide acceptability the chief reason why the administrative
process was relatively slow to develop in the USA.
The Doctrine of Separation was conceived
in its modern form by the French philosopher Montesquieu within the
intellectual milieu that prevailed during the period preceding the French
Revolution. He emphasized the significance of keeping the three branches of the
modern state- the judiciary, executive and legislative separate from each
other. Montesquieu gave voice to an emerging political doctrine in late eighteenth-century
France that considered too much concentration of political power in the hands
of one individual a factor of tyranny and arbitrariness. It was argued that
each of these organs must confine its area of authority to one domain- the
legislature should be confined to legislative function only and it should have no
executive or judicial function to discharge; the executive should restrict
itself to executive functions and the judiciary should discharge only judicial,
and neither executive nor legislative functions. Besides ensuring efficiency by
allocating each function to the institution best suited to discharge it, the
main democratic motivation behind the separation of powers is to prevent too
much power from getting concentrated in the hand of one authority, which, it is
argued leads to tyranny and arbitrariness.
The doctrine of separation of
power forms the basis of the American constitutional structure. Articles 1, 2
and 3 embody the concept of separation of powers. Article 1 vests legislative
power in the Congress; article 2 vests executive power in the President and article
3 vests judicial power in the Supreme Court. Described as the presidential form
of government, it confers upon the president the status of the head of the state
and its chief executive. All policies and executive actions of the state lie
under the control and supervision of the president. He appoints a number of
secretaries to head the various departments of the state, but they enjoy their
offices at his pleasure and he is not bound by their advice. Neither the
president nor the various secretaries of the state are members of Congress; a
clear separation is maintained between the executive and legislature. The
American Presidential form of government is very different from the
parliamentary system that prevails in common-law countries. For instance, in India,
the Prime Minister, as well as his ministers are members of the Parliament, and
take an active part in the law-making process, despite being members of the
executive. While the legal status of the Secretaries of the State in the US is
little more than that of glorified advisors, in the Westminster Parliamentary
form of government, the cabinet is collectively responsible to the Parliament,
and the Prime Minister cannot remain in power unless he enjoys the confidence
of the House.
In the Parliamentary form of
government, a fair degree of overlap is seen between the executive and the legislature.
A Prime Minister in the Westminster model can seek the dissolution of the
Parliament, but in the Presidential form, as we have seen above, the
President’s role is relatively autonomous from that of Congress. He enjoys a
fixed tenure, meaning that the fate of the majority in Congress does not affect
his position. Neither can he dissolve the Congress, nor can the latter remove
him through a simple majority. The process of impeachment is an extremely
cumbersome one in the American system.
This does not mean though that
the three organs of the state function as water-tight compartments. Some
overlaps between the three have been introduced with a view to maintaining some
measure of mutual checks and balances among them. For instance, the President
may veto a bill passed by Congress, even though he is not a part of the
legislature. Likewise, the Senate has a say in the appointment of certain high
executive functionaries. The Supreme Court has the right to declare bills
passed by Congress unconstitutional. But the judges of the Supreme Court are appointed
by the President with the consent of the Senate. Through such overlaps, the
three organs keep each other’s authority in check and prevent each other from
exercising power arbitrarily in their respective domains.
On the face of it, the doctrine
of separation of powers and administrative law seem mutually incompatible.
Whereas the purpose of the former is to keep the three organs of the state
apart, the raison d’etre of the latter is to govern the conferment of
legislative power on the executive (the administrative apparatus). However, the
two in fact complement each other. The process of governance throws up complex
socio-economic challenges. Abstract philosophical principles are rarely
equipped to tackle the diversity of everyday life. This does not, however, warrant
wholesale casualization of state processes. A right balance between principles
and practices is indispensable for the efficient functioning of the three state
organs. Therefore, despite their seemingly contradictory purposes, the doctrine
of separation of powers and administrative law complement each other. The
extent of implementation of each is determined legally by successive judgments
of courts.
Relevant case laws shed light on
the complexity of issues that Courts are sometimes faced with in this regard-
In Express Newspapers Ltd v
Union of India, (1958), a statutory wage board was appointed to fix the rates
of wages for working journalists. The Board consisted of members representing
employers nominated by the government and an equal number of working
journalists. The chairmanship was reserved for an independent person.
The matter of the nature of this
board’s functions came before the Court-
Two questions were mainly
discussed-
Whether the decision of the wage
board was open to judicial review, and
Whether the principle of natural
justice applied to its proceedings.
If it could be established before
the Court that the nature of the functioning of the board was legislative in character,
then cases pertaining to it could not be heard by the Supreme Court under Article
136 of the constitution, nor would the principle of natural justice apply to
its proceedings.
The overlapping nature of the
functioning of the board made the question of the determination of its status
difficult. Since the determinations of the Board were binding on the employers
and employees not just in the present but for the future as well, it could be
argued that the nature of its functioning was legislative. But since the Board
also performed the function of adjudicating between the employees and
employers, it was also possible to argue that its actions, being like that of
an industrial tribunal, could be deemed to be quasi-judicial in nature. After
an animated exchange of arguments from both sides, the Court refrained from
pronouncing the character of the Board.
Another legal question that has given
rise to spirited litigation is that of price regulation-
In the period immediately after
the independence, Courts in general tended to treat it as an administrative
issue. However, this changed after Saraswati Industrial Syndicate v Union of
India (1974) when a notification issued by the Central Government under the
Sugar (Control) Order 1966 was passed, fixing ex-factory prices of sugar for
the sugar factories specified in the order. The Supreme Court characterized the
government’s price-fixing power as being more of a legislative power than an
administrative one. The Court observed that the criterion adopted to fix the
price ‘must be reasonable’ and not based on extraneous considerations; there
should be a reasonable nexus between the matters which are considered for the
exercise of a particular power and the purposes for the exercise of that power.
Following this landmark decision,
in most instances, the Supreme Court has tended to characterize price-fixing
power as legislative in nature.
In Union of India v Cynamide
India Ltd., 1987, the Supreme Court examined the question of price-fixing
at length and ruled that price fixing under the Drugs (Price Control) Order,
1979 was a legislative activity.
It observed that with the
proliferation of delegated legislation the distinction between the legislature
and administration is disappearing into an illusion, and so it has become
difficult in theory and impossible in practice to draw a sharp line between the
state’s legislative and administrative functions. Nevertheless, the task of
drawing such a distinction is a significant one if the principles of natural
justice are to retain any measure of relevance.
The test laid down by the Court
to distinguish the legislative functions of the government from its
administrative functions is as follows,
“A legislative act is the
creation and promulgation of a general rule of conduct without reference to cases;
an administrative act is the making and issue of a specific direction or the
application of a general rule to a particular case in accordance with the requirements
of Policy…
And again,
“Legislation is the process of formulating
a general rule of conduct without reference to particular cases and usually
operating in future, whereas the administration is the process of performing
particular acts of issuing particular orders or of making decisions which apply
general rules to particular cases.”
Here, the Court drew attention to
two aspects that distinguish a legislative act from an administrative act- its generality,
that is, its aspect of being applicable in general to all cases and its
futurity, that is, its ability to determine all future cases. Thus, generality
and futurity are the two aspects of a legislative act that distinguish it from
an administrative action.
The legally significant point
between this distinction is that legislative activity is not subject to the
rules of natural justice, but an administrative/quasi-judicial act is subject
to it.
In State of UP v Renusagar
Power Co., 1988, a company sought exemption from payment of the electricity
duty on the ground that it self-generated all the electricity used by it. The
government’s decision on the exemption requested by Renusagar Power Co. was
held to be quasi-judicial in character. This means that the government was obligated
to give the company a hearing before deciding upon the matter.
It may, however, be emphasized
that the courts should be wary of unduly extending the frontiers of the legislative
function, as this concept is often invoked by the Administration to deny hearings
to the affected persons. The more the concept of legislative function expands
the less scope there will be to involve procedural safeguards for the affected
interests. This may cause the concept of natural justice to be neutralized to
the extent the ambit of legislative function is expanded.
A relevant case in this regard is
the State of Assam v Bharat Kala Bhandar, 1967. Under the Defence of
India Rules, 1962 the executive issued a notification, declaring certain
employments as essential ‘for securing the public safety and for maintaining
supplies and services necessary to the life of the community.” The Supreme Court
ruled that a notification of such nature cannot be issued without consulting
the interests concerned as it unsettles at one stroke the relations between
employers and employees which may have existed for a long time, and which may
have been the outcome either of contractual relations or industrial awards. The
Court observed that such wide and far-reaching powers ought not to be exercised
without consulting the interests concerned. What is significant about this case
is that as per the classification test laid down later in Cynamide India
Limited a notification of this nature would be considered as being of
legislative character and yet the Court insisted on some kind of consultation
before its issue. This seems to be a more engaged approach as the Court did not
put any label on the power exercised and focused its attention on the effect
created by it.
The legal principle laid down by
this judgment is that if a government rule lays down a prospective law, maybe
no hearing or consultation is mandated, but when established rights or
interests are sought to be disturbed, then the affected interests ought to be given
some participation in the decision-making process.
Hearing in a legislative order is
often sought to be excluded from the scope of the application of natural justice
on the ground that legislature being a representative body is not likely to
take arbitrary action; but when the Administrative acting in its quasi-judicial
capacity exercises legislative function, there is no such in-built safeguard. But
this line of reasoning is not always correct.
This was the approach adopted by
the Supreme Court in K I Shephard and Others v Union of India, 1987. The
Reserve Bank effected an amalgamation of three private banks with nationalized banks
resulting in the termination of 125 private employees of the bank. This scheme
was challenged by the employees, inter alia, on the grounds that no opportunity
to be heard was given to them. The Reserve Bank argued that the scheme was
legislative in character and, thus, was outside the purview of the ambit of
natural justice. The Supreme Court rejected the Reserve Bank’s Contention and
upheld the employees’ right to be heard.
Thus, it appears
from the case law we examined that the test of generality to distinguish
between a legislative or an adjudicatory act is only a broad test which may not
necessarily be true or decisive always, and other considerations may have to be
considered by the courts to decide the nature of a particular act of the Administration.
These cases show
that while the general principle is that no hearing needs to be given by the
Administration when it is discharging a legislative function, there may be circumstances
when the courts may adopt a broader approach on the matter of procedural
safeguards to the affected persons.
The doctrine of
separation of power exists to strengthen the democratic spirit and negate the
possibility of concentration of power. It is a useful tool to protect citizens from
the arbitrary exercise of administrative powers against private citizens and to
establish a legal regime based on the principle of natural justice.
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