Separation of Powers

Power corrupts, and absolute power corrupts

absolutely.
What is it?

Doctrine of Constitutional and Administrative law where the

three functions of government are allocated to different
branches, and not concentrated within a single entity.
History

Aristotle: Deliberative, magisterial and judicial power

John Locke: Continuous executive power (includes judicial

power), discontinuous legislative power and federative power
(power to enter into treaties, etc.).

Modern separation of powers as we know it originated from

the French philosopher Montesquieu in his book ‘De l’espirit
des lois’ (The Spirit of the laws)
Montesquieu

Published in 1748

Claimed that no one person must exercise all three powers of

government: legislative, executive and judiciary.
Montesquieu

When the legislative and executive powers are united in the

same person, or in the same body or Magistrate, there can be
no liberty. Again, there is no liberty if the judicial power
is not separated from the Legislative and Executive power.
Where it joined with the legislative power, the life and
liberty of the subject would be exposed to arbitrary
control, for the judge would then be the legislator. Where
it joined with the executive power, the judge might behave
with violence and oppression. There would be an end of every
thing were the same man or the same body to exercise these
three powers
Montesquieu

Separation of powers did not mean that it was taken to its

water-tight logical conclusion.
Organs could coordinate and work together, provided that
they each ensured that the other two did not go out of
control.
This created a system of checks and balances where each arm
checked the rapid empowerment of the other.
Wade and Philips

Separation of Powers entail the following:

1. The same person should not form more than one organ of
the Government.
2. One organ of the Government should not exercise the
function of other organs of the Government.
3. One organ of the Government should not encroach with the
function of the other two organs of the Government.
James Madison, Federalist 47

‘The accumulation of all powers legislative, executive and

judiciary in the same hands, whether of one, a few or many,
and whether hereditary, self appointed, or elective, may
justly be pronounced the very definition of tyranny.’
Article I, S. 1: Legislative Powers vest with Congress
Article II, S.1: Executive Power rests with the President
Article III, S.1: Judicial Power rests with the Supreme
Court.
India

There is no strict doctrine of separation of powers in

India.
The CAD records debates that give reason for this, and while
complete and absolute separation was considered and argued
for, the Assembly believed it better to have the
three arms in harmony with each other.
Dr. Ambedkar agreed with the separation of the
judiciary from the executive (Art. 51), but felt
that the legislature needed the guidance of the
executive to perform its duties.
India: The Intersections

Art. 123: The power of the President to promulgate

ordinances. (Legislative power of the President)
Art. 72: The Power of the President to grant clemency.
(Judicial Power of the President)
Art. 213: Power of the governor to promulgate ordinances.
(Legislative power of the Governor)
Art 161: The Power of the Governor to grant clemency.
(Judicial Power of the Governor)
India: The Intersections

Art. 357: The power of the President to make laws during

President’s Rule. (Legislative Power)

Art. 103(1): The President shall have final say on the

disqualification of MPs.
India: The Intersections

Art. 56: Impeachment of the President by the Legislature.

(Judicial Power of the Legislature)

Judicial activism is an example of the legislative actions

taken by the judiciary.

E.g:- Vishakha v. State of Rajasthan

India

Ram Jawaya Kapoor v. State of Punjab:

Indian Constitution has not indeed recognized the doctrine

of separation of powers in its absolute rigidity, but the
functions of the different parts or branches of the
Government have been sufficiently differentiated and
consequently, it can be very well said that our Constitution
does not contemplate assumption by one organ or part of the
State of functions that essentially belong to another.
Delegated Legislation

It could mean one of two things:

The act of empowering subordinate agents to exercise
legislative power, or
The subsidiary rules themselves which are
made once the power is delegated.
To delegate is to entrust a task to a person
less senior than the one originally intended
to perform the function.
Delegated Legislation

It is in this context, the law made by an executive authority as

per the mandate of the primary authority (the legislature) in
order to give complete effect to their laws.
Through an act of legislature, anyone may be empowered to make
laws to the extent that the legislature deems fit.
However, these delegated legislations must not be contrary to the
parent law.
E.g.- If the parliament makes laws regarding taxes, the rules
made by the executive cannot go against the parent tax law.
Delegated Legislation

What are the advantages of delegated legislation?

1. Greater subject matter expertise.
2. More updated with the times and easier to amend with the
flow of time.
3. More context-specific.
4. Easier to implement, as the executive knows better what
the rules must be for ease of implementation.
5. More efficient than legislation in certain circumstances.
Held in St. Johns Teachers Training Institute v. National
Council for Teacher Education [(2003) 3 SCC 321]
Delegated Legislation

Parliament has no time to make detailed laws regarding every

single matter.

Furthermore, legislatures only ‘function’ during designated

durations for the entire year. In order to legislate on
important matters during emergencies, the
executive is empowered to make certain laws
when legislatures are not in session.
Delegated Legislation

Criticisms of delegated legislation:

1. It may result in undemocratic law-making as the elected

parliament is sidelined. Also causes dilution of
separation of powers.
2. No relevant discussion or criticism before making laws.
Not enough public opinion solicited either.
3. It is bound to the whims and fancies of changing
political environments.
In re Delhi Laws Act:

Observations in this case:

1. Power to legislate includes the power to delegate.
2. Delegation must be restricted to only non-essential
functions. This means that the legislature cannot
delegate any essential or central part of the law to
modify, amend or legislate upon.
3. Only the legislature has the power to modify or amend the
parent law when permissible.
4. Repealing a law is the sole prerogative of the
legislature and cannot be done by the executive.
In re Delhi Laws Act

If the law-making body gives power to authority to make

delegated legislation , then it should lay down set down the
policies or unique guidelines as far as the delegation is
concerned. The legislature must set both the methods and the
boundaries.
State of M.P. v. Bhola [(2003) 3 SCC 1

A delegated legislation can be declared invalid by the Court

mainly on two grounds : firstly, that it violates any provision of
the Constitution and secondly, it is violative of the enabling
Act. If the delegate which has been given a rule-making authority
exceeds its authority and makes any provision inconsistent with
the Act and thus overrides it, it can be held to be a case of
violating the provisions of the enabling Act but where the
enabling Act itself permits ancillary and subsidiary functions of
the legislature to be performed by the executive as its delegate,
the delegated legislation cannot be held to be in violation of the
enabling Act.
Other principles:

ITW Signode India Ltd. v. CCE [(2004) 3 SCC 48] :

In case of conflict with the parent law (the law that

authorizes delegated legislation), the delegated legislation
is void to the extent of the conflict and the parent law
shall prevail.
Other principles:

If the parent statute is void or unconstitutional, the delegated

legislation made under that law is also automatically void or
unconstitutional.
While there is no Constitutional bar on delegation, essential
legislative functions cannot be delegated.(Hamdard Dawakhana v. Union
of India)
The parent Act cannot give unfettered power to discriminate to the
delegated authority. There must be bounds imposed upon the authority,
for otherwise, it would be arbitrary and violative of Article 14.
Excessive delegation of powers renders the entire delegation void.
(State of West Bengal v. Anwar Ali Sarkar)
Sub-delegation

Delegation is bound by the principle of ‘ delegatus non

potest delegare’ (That which has already been delegated
cannot be delegated again) This is notbinding law, however,
and is merely a rule of construction of a statute.

Sub-delegation refers to the process by which a person or

entity that has been granted administrative powers or
authority by a higher authority further delegates some or
all of those powers to another person or entity.
Sub-delegation

Sub-delegation can only happen if it is expressly permitted

in the parent statute. This is the position of law in India.
(Narendra Kumar v. Union of India)

In cases of extreme inconvenience without a provision in the

statute, however, the power to sub-delegate may be
implicitly read into the statute in the UK.