Answer:- Doctrine of separation of powers. – It is customary to divide the powers of
Government into – (a) Legislative, (b) Executive and (c) Judicial Separation of
power may mean three different things –
(a) that the same set of persons should not
form part of more than one of the three organs of Government;
(b) that one organ of Government should not
control or interfere with the exercise of functions of another organ, e.g.,
judiciary should be independent of the Executive;
(c) That one organ of Government should not
exercise the functions of the other two departments.
Montesquieu.
- The
doctrine of separation of powers was first formulated by the French jurist
Montesquieu. His statement of doctrine has been thus interpreted as, if the
executive and the legislative are the same person or body of persons, there
would be a danger of the legislative enacting oppressive laws which the
executive will administer to attain its own ends. Further he said that if
judicial and executive powers are concentrated in one person or a body of
persons, then there would be no objectivity of law. And to concentrate the
powers of all the three organs in one person or body of persons would mean to
create virtual despot of the State.
Check
and Balance. – In many continental Constitutions
separation of powers has meant an unhampered Executive. In England it means
little more than an independent judiciary. It is in the United States that real
division of powers between the three organs and strict adherences to the
doctrine of separation of powers is followed. Thus, framers of the American
Constitution intended that the balance of powers would be attained by checks
and balances between separate organs of Government. They took the idea from
English Constitution.
As regards the
place of the doctrine of separation of powers with reference to administrative
law. It has been held that administrative law is the negation of the doctrine.
Under administrative law, we know that administrative bodies exercise
legislative as well as judicial functions. Practical necessities for Parliament
to trust the executive and accept its legislative programme though having right
to amend it or alter it, have now been accepted as an established fact.
Moreover, administrative authorities are also performing quasi judicial
functions in the present century. It was therefore felt necessary to set up
administrative tribunals to decide the disputes of technical nature. Under the
common impression these tribunals are called administrative but in majority of
cases they are judicial in the sense that tribunal has to decide facts and
apply rules to them impartially without considering executive policy. Thus, we
see that administrative agencies perform judicial functions as well, which is
not in agreement with the doctrine of separation of power. According to this
doctrine the administrative bodies should neither perform the functions
legislation nor of judiciary , but under administrative law we find that some
of the functions of both these organs, which are actually not within its
competence, are shared by the administrative authorities. Since separation of
power in strict sense has been regarded as impossible, it has been taken for
granted that three departments i.e., Legislative, Executive and Judiciary
should function in co-ordination without having any control or influence on
each other.
Such a theory was
undoubtedly, theoretically very sound, but it would have led to disastrous
results if carried out into practice. There was actually no separation of
powers at all in England, as Montesquieu fancied and for others, there was
actually a blending of powers. One writer has remarked, Montesquieu looked
across foggy England, from his sunny vineyard in Paris, and completely
misconstrued what he saw.
As a matter of
fact the doctrine of separation is not the negation of administrative law. The
purpose of the doctrine was to protect the rights and liberties of individuals
and to save them from arbitrariness. In view of this purpose of the doctrine it
can be concluded that it is not opposed to administrative law.
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