Essential Evaluations on the doctrine of ‘Separation of Powers’
The role of the State in the day to day affairs of its citizens has increased enormously in recent times. As the founding fathers of our nation envisaged the government to perform the role of a welfare state; the State in the present day is required to carry out many intricate and complicated functions and duties. The government in order to perform the same needs to source its authority from the law of the land as legislated by the parliament. Given the complex nature of the functions, the parliament delegates certain of the powers to legislate to the administration. (1)
The true function of the executives is to administer the law as enacted by the legislature. However, this principle has been overridden due to administrative necessity. The legislature, therefore, is restricting itself to lay down the broader policy framework and furthermore delegating the surplus ancillary lawmaking power to the administrative authorities to meet the demands of the situation. (2)
However, one must necessarily examine the legitimacy of such a process vis a vis the Constitution of India reason being that the practice of delegating the legislative functions runs the risk of putting down the democracy and the responsibility of the government at a halt as it also gives the legislative power to those who are not necessarily the representatives of the people. Furthermore, as has been laid down in the landmark judgement of Devi Das Gopal Krishnan and Ors. v. State of Punjab (3), the Hon’ble Supreme Court of India has held that the policy framework laid down by the legislature may be termed as vague and general if settled without any limitations on the discretion to the administrative legislation giving rise to arbitrary rules.
The principle of conditional legislation is an important aspect of administrative legislation. Conditional legislation would refer to a statute that gives the authority to the administrative body to bring into force the laws enacted and other similar modalities (4). Moreover, the conditional legislation comes into effect as a result of administrative action.
The principle of conditional legislation is also distinct from the delegated legislation in terms that the legislature has laid down all the necessary aspects of legislating in the governing act while in latter the administration is vested with legislating powers. It is for this reason that in instances when there is conditional legislation, the act is hardly ever challenged on the grounds of excessive delegation. As was held by the Supreme Court in the case of State of Tamil Nadu v. K. Sabanayagam (5);
“The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and its, therefore, not open to attack on the ground of excessive delegation however the delegated legislation does confer some legislative power on some outside authority and is, therefore, open to attack on the ground of excessive delegation.” (6)
In England, the paramount position the parliament occupies in the State enables it to enjoy its absolute supremacy (7). The delegation of any legislative functions to outside agencies is hardly ever brought to question in a court of law as it has been authorised by the seal of the parliament. The objects and policy are debated by the parliament examining the provisions and the interests of those stakeholders affected. The remainder technicalities and administration of the act are left to be taken care of by the outside agency (8). On the issue that such administrative transgression into the sphere of legislation would violate the principle of separation of powers, Lord Jennings in his book, The Law and the Constitution (9) had stated the following-
“The doctrine of the separation of powers does not enable a clear distinction to be drawn as a matter of analysis, and in any case does not assist in determining what functions should be exercised by Parliament and what by the administrative authorities.” (10)
The United States of America
It is important at this juncture to examine the Constitution of the United States which follows a rigid separation of powers. It is categorically laid down in Article 3 that ‘all the legislative powers would be vested in the Congress of the United States of America which consists of Senate and the House of Representatives. (11)
However, this principle has not been rigidly followed in practice. The courts had to reconcile with this problem. It was observed in Panama Refining Co. v. Ryan (12) that ‘the legislature is ill-equipped to legislate on matters that are intricate and complicated.'
Accepting this reality, the court observed that one cannot rigidly follow ‘separation of powers’ and choose not to legislate in matters that the parliament is ill-equipped with. Such practice however could lead to a power vacuum leading to anarchy and give rise to an anomaly where the parliament cannot legislate even though it has the power to legislate. Although this principle is against the fundamental constitutional rule that the power delegated to the legislature by the people cannot be further delegated by the legislature, parliamentarians have often avoided risking a situation where there can occur a vacuum in legislation.
The position in India is similar to the one in the United States due to certain similarities vis a vis the Constitution and the adherence to the doctrine of separation of powers. The question first came up after we adopted the Constitution of India in the decision of In Re The Delhi Laws Act, 1912 (13) before the Hon’ble Supreme Court of India. The question mooted in this particular landmark judgement was that ‘Whether India should follow the model in practice as in the United States with respect to the delegated legislation where the legislature does not have extensive powers to delegate legislating function or to follow the model as practised in the United Kingdom where the legislature is given such discretion?’
In order to bring clarity on the above, a presidential reference was made to the Hon’ble Supreme Court of India under Article 143 of the Constitution of India. Two extreme views were put before the 7 judge bench of the court on whether the delegation of legislation is permissible or not. While one side of the argument was that power to delegate legislative functions comes with the power to delegate vested on the parliament and the other side had placed extensive reliance on the argument that the parliament which has been delegated with the duty to legislate cannot further delegate the same and it would be against the principle of ‘delegates non-potest delegare’.
In this particular case, the court had outrightly debunked the doctrine of ‘separation of powers' under the Constitution and hence ruled out that the executive was not barred from taking upon itself legislative functions. (14) Further, it went on to hold that the principle of ‘delegates non-potest delegare’ is not relevant as no power to legislate has been delegated to the Parliament of India. It hence had complete authority to delegate the power to legislate to the executive.
Unconstitutionality of Excessive Delegation
One of the dangers of delegation of legislative function is that any excessive delegation of such legislative power would be held to be unconstitutional. (15) The jurisprudence on excessive delegation has evolved through various pronouncements of the judiciary which have taken a strict note on how the provisions have been misused in practice.
The principles guiding the scope of excessive delegation has been laid down by the court of law since the inception of the parliament in India. The Supreme Court as early as 1954 has held in the case of Harishankar Bagla v. The State of Madhya Pradesh that it is unconstitutional when the parliament abdicates from performing its legislative functions. (16)
Further in a later case of Kerala State Electricity Board v. Indian Aluminium Co. Ltd a surcharge order was in question which was passed in the exercise of Section 3 of the Kerala Essential Articles Control Act where its purpose was to control the commerce of certain articles in the public interest. (17) The government had the power to notify what is an essential article and the same was challenged on the ground of excessive delegation. Thus, in this case, the court had gone into the question of the intention of the legislature to ascertain the policy framework.
All these principles were summarized recently by a 3 judge bench of the Supreme Court in the recent case of St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education. (18) In this authoritative judgement, the court has held that a statute would be ultra vires the Constitution of India in circumstances for excessive delegation of the legislative function.
In the more recent case from 2011 of K.T. Plantation Pvt. Ltd. v. the State of Karnataka, the Supreme Court examined the Preamble to the Constitution of India. (19) In this particular case, the provisions of the land acquisition act delegating legislative powers to the executive was in question. The court held that it cannot invalidate the legislation for delegating essential functions for granting unguided powers without examining the preamble of the Act. (20)
In this case, the legislature was found to have failed in its duty to lay down adequate policy guidelines which would act as restrictions within which the executive is meant to work. Due to the failure of this mechanism, there was found a clear impressible violation under a modified separation of power paradigm.
Separation of powers in the Indian context
At this juncture, it is crucial to examine some of the principles of ‘separation of power’ and the ‘rule of law’. These doctrines in practice have been an inseparable part of democracy and have been a keystone in the mechanism that keeps tyranny in check.
In their treatises, John Locke and Montesquieu have theorized that the government must function within a tripartite system with the Executive, the Legislature and the Judiciary. This would distribute the responsibilities of governance and the power that comes with it and shall keep each of them in check. (21)
This doctrine of ‘separation of powers' is closely linked to ‘rule of law’ if not a direct manifestation of it. This doctrine has its conceptual roots in natural law envisaging the movement to a progressive society. (22) This mode of classification of various functions appears to be for the administrative convenience but it also ensures in fulfilling the noble and critical objective of putting restrictions on the exercise of arbitrary powers by any one of the organs of the State. (23) It thus divides the spheres of governance and thereby creates a distinct centre of powers to prevent tyranny.
The same is important in our legal system which is founded on the principle of ‘rule of law’. Every act of the governmental power must be authorised directly or indirectly by the will of the sovereign and the affected persons must always have recourse to the courts of law in order to redress any violation of rights or any restrictions on their liberties. (24)
The principles of rule of law and separation of powers are of vital importance in modern-day governance. Strict adherence to these principles enunciated by philosophers such as Locke and Montesquieu ensures that balance of power is maintained with adequate checks and balances between the powers of various organs in circumstances when they transgress their spheres.
The parliament in any democracy gets its legitimacy for being the only representative organ of the State. It is for this reason that the vital task of rulemaking is entrusted with this body as it truly represents the sovereign will of the people as they have elected their parliamentarians. Given that it is a practical and an administrative necessity that it delegates certain of its functions to the executive, the question arises as to the extent to which such delegation is permissible. As a matter of fact, the parliament cannot abdicate from legislating on essential functions. In doing so, it would lead to a clear violation of the separation of powers and an instance of administrative overreach can be called out for. In addition, when certain functions have been delegated, the legislature must impose certain checks on the administrative rulemaking body by enunciating the policy of the legislation.
Gwalior Rayon Mills Mfg. (Wing.) Co. Ltd. v. Asstt. Commissioner of Sales Tax and Others; 1974 AIR 1660
P.N. Kaushal v. Union of India and Ors (1979) 1 SCR 122
 1 S.C.R. 557
D.D. Basu, Administrative Law, Kamal Law House, Kerala, 6th ed (2005), Pg. 57
1998 (1) LLJ 16
(1998) 1 SCC 318
H.W.R Wade & C.F. Forsyth, Administrative Law, OUP, New Delhi, 2004, Pg. 892
Delegated Legislation, A Brief Guide, House of Commons Information Office, 2011
Sir Ivor Jennings, The Law and the Constitution, University of London Press, London, 1963. P. 595
Article 3 of the Constitution of the United States of America
(1635) 293 U. S. 388
1951 AIR 332
Supra at 6
1954 AIR 465
Kerala State Electricity Board v. Indian Aluminium Co. Ltd 1976 AIR 103
(2003) 3 SCC 321
AIR 2011 SC 3430
Montesquieu, De L’ Espirit des Lois, 1798
H.W.R. Wade & C.F. Forsyth, Administrative Law, OUP, New Delhi, 2004, Pg. 867
Upendra Baxi, Developments in Indian Administrative Law, Public Law in India, Vikas Publishing House, New Delhi, 1982, Pg. 153
Randy E. Barnett, Constitutional Legitimacy, 103 Colum. L. Rev. 111-148 (2003)