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Doctrine Separation of Power: Administrative Law

The document discusses the doctrine of separation of powers, including its origins with philosophers like Aristotle, Locke, and Montesquieu. It developed the idea that the legislative, executive, and judicial powers should be separated and independent. In India, the constitution provides for separation of powers through provisions regarding the legislature, executive, and judiciary. However, the courts have found it exists more as a system of checks and balances rather than strict separation, to prevent any branch from becoming too powerful. The doctrine aims to protect individual liberty and prevent arbitrary rule.

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3K views8 pages

Doctrine Separation of Power: Administrative Law

The document discusses the doctrine of separation of powers, including its origins with philosophers like Aristotle, Locke, and Montesquieu. It developed the idea that the legislative, executive, and judicial powers should be separated and independent. In India, the constitution provides for separation of powers through provisions regarding the legislature, executive, and judiciary. However, the courts have found it exists more as a system of checks and balances rather than strict separation, to prevent any branch from becoming too powerful. The doctrine aims to protect individual liberty and prevent arbitrary rule.

Uploaded by

janvi
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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  • Doctrine of Separation of Power: An introductory page presenting the title 'Doctrine of Separation of Power' relevant to Administrative Law.
  • Origin and Development: Covers the historical background and development of the theory of separation of powers, highlighting key philosophers and jurists.
  • Meaning: Describes the doctrine of separation of powers, explaining the role of legislative, executive, and judicial branches in government.
  • Importance of the Theory of Separation of Powers: Discusses why the separation of powers is vital for democracy, citing its role in preventing despotism and maintaining checks and balances.
  • Constitutional Provisions: Details specific constitutional articles that outline the separation of powers and their implications on legislative and judicial processes.
  • Check and Balances: Explains the practical implementation of checks and balances within the framework of separation of powers using case law examples.
  • Conclusion: Summarizes the relevance and practicality of the separation of powers doctrine in today's political landscape.

DOCTRINE SEPARATION

OF POWER
ADMINISTRATIVE LAW
Origin and development
• 3 exponents of Theory of Separation of Power

Philosopher /Jurist

Locke Montesquieu
Aristotle
Developed and [Propounded]
[Originated]
Defined its Principles

How will S.O.P


exist

Systematic and
Its Functions Scientific
formulation.
Meaning
• The doctrine of separation of powers means that none of the government, i.e., the

legislative, executive and judicial should ever exercise the powers of the other. It
means that the three departments of government are to be separated and
distinct. They are to be independent of one another, and each can exercise only
one type of authority, legislative, executive or judicial.
Montesquieu
Book: Spirit of law
Formulated theory

Distinguish
the Govt.

Legislature Executive Judiciary


IMPORTANCE OF THE THEORY OF
SEPARATION OF POWERS
• It aims at individual liberty. It is a safeguard against despotism.

• Its basic principle that concentration of powers leads to dictatorship is

true for all time and ages.

• The separation of powers saves the people from the arbitrary rule of the

executive .

• This theory lays down the principle that governments should act

according to certain well established rules or law.

• Each organ acts as a check upon the others.

• It is desirable for maintaining the efficiency in the administration.


Constitutional Provisions

 Article 50: It puts an obligation over the state to separate the judiciary from the

executive. However, Article 50 falls under the Directive Principles of State policy
(DPSP) and hence not enforceable.

 Articles 121 and 211 : The legislatures cannot discuss the conduct of a judge of

the High Court or Supreme Court. They can do so only in matters of


impeachment.

 Articles 122 and 212 :The courts cannot inquire the validity of the proceedings of

the legislatures.

 Article 361 :The President and Governors enjoy immunity from the Proceedings
Check and Balances
• The first major judgment by the judiciary in relation to Doctrine of separation of

power was in Ram Jawaya v state of Punjab. The court in the above case was of
the opinion that the doctrine of separation of power was not fully accepted in
India.

• Indira Nehru Gandhi v. Raj Narain also observed that in the Indian Constitution

there is separation of powers in broad sense only. It observed that basic structure
also embodies the separation of powers doctrine and none of the pillars of the
Indian Republic can take over the other functions, even under Article 368. it was
held that this doctrine is useful as a means of checks and balances in a political
setup. For examples the judiciary should shy away from the politics of the
Parliament and the latter should revere the opinion of the Courts.
• The judgment makes the concept of Check and Balances clear that if any organ exceeds its

authority the other organ can interfere in the same by:

1. Judiciary exercises judicial review over legislative and executive actions.

2. Legislatures review the functioning of the executive also it removes the judges.
It can also alter the basis of the judgment while adhering to the constitutional
limitation.

3.Executive appoints the judges.

A system of checks and balances is a practical necessity in order to achieve the


desired ends of the doctrine of separation of powers. Such a system is not
dilatory to the doctrine but necessary in order to strengthen its actual usage.
Conclusion
• The doctrine of separation of powers in the strict sense is

undesirable and unpractical and therefore till now it has not


been fully accepted in any of the country, but this does not mean
that the doctrine has no relevance in the world of today. The
logic behind this doctrine is still valid. The logic behind the
doctrine is of polarity rather than strict classification, meaning
thereby that the centre of authority must be dispersed to avoid
absolutism. Hence the doctrine can be better appreciated as a
doctrine of ‘check and balance’.

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