Maharashtra Politics and Constitution: Separation of Powers and Administration Law


Introduction:


The doctrine of Separation of Powers is of ancient origin. The history of the origin of the doctrine is traceable to Aristotle. In the 16th and 17th Centuries, French philosopher John Bodin and British Politician Locke respectively had expounded the doctrine of separation of powers. But it was Montesquieu, French jurist, who for the first time gave it a systematic and scientific formulation in his book ‘Esprit des Lois’ (The spirit of the laws).


Montesquieu’s view –

  • Montesquieu said that if the Executive and the Legislature are the same person or body of persons, there would be a danger of the Legislature enacting oppressive laws which the executive will administer to attain its own ends, for laws to be enforced by the same body that enacts them result in arbitrary rule and makes the judge a legislator rather than an interpreter of law.

  • If one person or body of persons could exercise both the executive and judicial powers in the same matter, there would be arbitrary powers, which would amount to complete tyranny, if the legislative power would be added to the power of that person.

  • The value of the doctrine lies in the fact that it seeks to preserve human liberty by avoiding the concentration of powers in one person or body of persons. The different organs of government should thus be prevented from encroaching on the province of the other organ.


Position in the United States:


This theory has had a different application in France, the USA and England. In France, it resulted in the rejection of the power of the courts to review acts of the legislature or the executive. The existence of separate administrative courts to adjudicate disputes between the citizen and the administration owes its origin to the theory of separation of powers. The principle was categorically adopted in the making of the Constitution of the United States of America. There, the executive power is vested in the president. Article 1 of the constitution of America vests the legislative power in congress and the judicial power in the Supreme Court and the courts’ subordinates thereto. The President is not a member of Congress. He appoints his secretaries on the basis, not of their party loyalty but loyalty to himself. His tenure does not depend upon the confidence of the Congress in him. He cannot be removed except by impeachment. However, the United States constitution makes a departure from the theory of strict separation of powers in that there is provision for judicial review and the supremacy of the ordinary courts over the administrative courts or tribunals.


Position in Britain:


In the British Constitution, the Parliament is the supreme legislative authority. At the same time, it has full control over the Executive. The harmony between the Legislator and the (Executive) is secured through the Cabinet. The Cabinet is collectively responsible to the Parliament. The Prime Minister is the head of the party in the majority and is the Chief Executive authority. He forms the Cabinet. The Legislature and the Executive are not quite separate and independent in England, so far as the Judiciary is concerned its independence has been secured by the Act for Settlement of dispute which provides that the judges hold their office during good behaviour, and are liable to be removed on a presentation of addresses by both the Houses of Parliament. They enjoy complete immunity in regard to judicial acts.




Position in India:


  • The executive is part of the legislature. The President is the head of the executive and acts on the advice of the Council of Ministers. {Article 53 and 74 (1)}. He can be impeached by Parliament. Article 56 (1) (b) read with Article 61.

  • The Council of Ministers is collectively responsible to the Lok Sabha {Article 75 (3)} and each minister works during the pleasure of the President. {Article 75 (2)} If the Council of M