Separation of powers and its bearing on administrative law
Administrative Law · Unit I · Topic 2 of 18 · 6 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. The doctrine
The idea goes back to Aristotle and Locke, but its classic statement is Montesquieu's The Spirit of the Laws (1748). He argued that when the legislative and executive powers are united in the same person or body there can be no liberty, and that there is no liberty if the judicial power is not separated from the legislative and the executive. The doctrine has three parts:
- the same persons should not form part of more than one of the three organs;
- one organ should not control or interfere with the work of another;
- one organ should not exercise the functions of another.
Its purpose is the prevention of tyranny by dividing power, and it is closely tied to the rule of law.
2. The doctrine elsewhere
- United States. The nearest to a strict application. Articles I, II and III of the US Constitution vest legislative power in Congress, executive power in the President and judicial power in the courts. Even there it is softened by checks and balances: the presidential veto, Senate confirmation of appointments, impeachment and judicial review.
- United Kingdom. No real separation. Ministers sit in Parliament and the executive is drawn from and responsible to the legislature. The House of Lords was the final court until the Constitutional Reform Act, 2005 created the Supreme Court (functioning from 2009) and reduced the Lord Chancellor's judicial role.
3. The Indian position
The Constitution distributes functions: Article 53 vests executive power of the Union in the President, Article 79 creates Parliament, Article 124 the Supreme Court, with parallel provisions for the States. Article 50, a Directive Principle, directs the State to separate the judiciary from the executive in the public services of the State. But there is a great deal of overlap.
- Executive and legislature fused. A Minister who is not a member of Parliament for six consecutive months ceases to be a Minister (Article 75(5)) and the Council of Ministers is collectively responsible to the Lok Sabha (Article 75(3)).
- The executive legislates. The President's ordinance power (Article 123), the Governor's (Article 213), rule-making under Article 309, and delegated legislation under countless statutes.
- The executive adjudicates. Tribunals, licensing authorities and disciplinary authorities decide disputes; the President decides questions of disqualification under Article 103.
- The legislature adjudicates in impeachment and privilege matters.
- The judiciary legislates and administers in a limited sense: rule-making under Articles 145 and 227, and control over subordinate courts under Article 235.
4. What the Supreme Court has said
In Rai Sahib Ram Jawaya Kapur v. State of Punjab, 1955 INSC 27, AIR 1955 SC 549, the State Government took over the business of printing and publishing school textbooks by executive action, without a statute. Mukherjea C.J. held this valid, because executive power extends to matters within legislative competence even without a law, so long as no law or right is infringed. In doing so he said that the Indian Constitution has not recognised the doctrine of separation of powers in its absolute rigidity, but that the functions of the different parts of government have been sufficiently differentiated, so that one organ cannot assume functions that essentially belong to another.
In Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225, several judges listed the separation of powers among the basic features of the Constitution. In Indira Nehru Gandhi v. Raj Narain, 1975 INSC 272, 1975 Supp SCC 1, the Court struck down clause (4) of Article 329A, inserted by the Thirty-ninth Amendment, which declared the Prime Minister's election valid and took the dispute out of the courts. Deciding an election dispute is a judicial function; Parliament, by doing it through an amendment, had exercised judicial power, and that offended the basic structure.
The other side of the doctrine is judicial restraint. In Asif Hameed v. State of Jammu and Kashmir, 1989 INSC 176, (1989) Supp (2) SCC 364, the High Court had directed the State to set up a body for admissions to medical colleges. The Supreme Court set that aside: the court can strike down executive action that is unconstitutional, but it cannot direct the executive how to frame policy. In Divisional Manager, Aravali Golf Club v. Chander Hass, 2007 INSC 1240, (2008) 1 SCC 683, a Bench warned courts against creating posts and directing regularisation, calling it an encroachment on executive and legislative functions.
5. The collegium and the NJAC
The June 2025 paper asked for the doctrine “with reference to the collegium system in appointing Judges”. The connection is independence of the judiciary, which is the third limb of Montesquieu's doctrine.
- In the Second Judges case, Supreme Court Advocates-on-Record Association v. Union of India, 1993 INSC 318, (1993) 4 SCC 441, a nine-judge Bench read “consultation” with the Chief Justice in Articles 124(2) and 217(1) as giving primacy to the opinion of the Chief Justice, formed collectively with senior judges. This created the collegium. The Third Judges case (a reference under Article 143, 1998) fixed its composition.
- Parliament then passed the Ninety-ninth Amendment, 2014 and the National Judicial Appointments Commission Act, 2014, putting appointments in a commission that included the Union Law Minister and two eminent persons. In the Fourth Judges (NJAC) case, Supreme Court Advocates-on-Record Association v. Union of India (decided 16 October 2015), (2016) 5 SCC 1, a five-judge Bench struck both down by four to one. Primacy of the judiciary in appointments was held to be part of judicial independence and so of the basic structure; giving the executive a decisive voice would breach it.
The critical view, which earns marks if stated briefly: the collegium is itself a departure from separation of powers in the opposite direction, because the Constitution's text gives the appointing power to the President, and the judiciary now in effect appoints itself. The NJAC judgment acknowledged the need to improve the collegium's transparency, and the Court heard suggestions on that later the same year.
6. Why it matters to administrative law
If separation of powers were strict, the executive could neither make rules nor decide disputes, and most of administrative law would be unnecessary. Because India accepts overlap, the law instead insists on controls: the legislature must lay down policy before it delegates (Unit II); an authority that decides rights must observe natural justice (Unit III); discretion must be exercised within limits and is open to judicial review (Unit IV). The doctrine survives as a set of checks rather than a set of walls.
How this is examined
As an essay: “Discuss the position of the doctrine of separation of powers in India”, sometimes with the collegium angle as in June 2025. Structure: Montesquieu's three propositions; the US and UK briefly; the Indian provisions showing overlap; Ram Jawaya Kapur, Kesavananda and Indira Gandhi; judicial restraint in Asif Hameed; then the collegium and NJAC if asked. Close with the point in section 6. As a short note, the doctrine is often paired with the rule of law, covered in the next note.
Now try the real questions: Administrative Law past question papers.