ADMINISTRATIVE LAW

DOCTRINE OF SEPARATION OF POWERS

 Aristotle is the creator of this theory.
 This theory was popularized by Bodin and Locke.
 The doctrine was systematically formulated by Montesquieu in Espirit des lois (Spirit of
Laws).
 Three main concepts are linked with this theory:
1. One person must not be a part of more than one organ.
2. One organ should not control another organ.
3. One organ should not exercise the functions of another organ.
Separation of Powers in the United States
 Articles 1, 2 and 3 of the American Constitution provide for entrusting powers in three
organs.
 The U.S. experience shows that strict separation of powers is not possible.
Kilbourn v. Thompson (1881)
Justice Fran Furter observed that strict separation of powers would make a modern
government impossible.

 The Budget and Accounting Act [U.S.]: When the President prepares the budget, he
must consult with the Congress. Therefore, the Executive action must be in consultation
with the Legislature. This depicts the control of Congress over the Executive.
Furthermore, the validity of the budget is determined by the Congress (as they vote on it).
 The President can veto the laws or Bills by the Congress. In this regard, the Executive
exercises control over the Congress.
 The Congress has power to determine expulsion and punishment of its members. In this
regard, the Congress is the sole and final judge. The Judiciary does not have any
adjudicatory authority.
 Impeachment proceedings of President are initiated before the Senate. The Legislature
controls these matters.
England
 There is no separation of powers in England.
 King is a part of the Legislature. His ministers are members of either House of
Parliament.
 The House of Lords, the upper house of Parliament, was the highest Court of England till
October 1, 2009.

Doctrine of Separation of Powers in India

 In the strict sense, there is no separation of powers.
 Article 50 – Separation of Judiciary from Executive
 Article 53 – Executive Power of the Union vested with President
 Article 154 – Executive Power of the State vested with Governor
 K.T. Shah, Kazi Syed Karimuddin and Hanumantiah were the three members in the
Constituent Assembly who demanded for a separate article in the Constitution with
provision for separation of powers. The majority rejected this proposal.
 Instead of such a provision, Dr. B.R. Ambedkar suggested the inclusion of Article 50.
Today, separation of powers is part of the basic structure of the Indian Constitution.
 There is no express provision that the legislative and judicial powers shall be vested in
any person or organ.
President’s Legislative Powers
1. Ordinance making power under Article 123(1).
2. Rule-making power for service matters under Article 309.
3. Law-making power on State subjects under Article 357.
President’s Judicial Functions
1. Disqualification of membership of Houses of Parliament under Article 103.
2. Pardoning power under Article 72.
Legislature performing Judicial Functions
1. Powers to punish for breach of parliamentary privileges.
2. Impeachment proceedings against Judges and President.
Legislative Action initiated only with Executive Authority
1. Article 3 – Formation of new States and alteration of boundaries
2. Article 274 – Imposition of surcharge
3. Article 117 – Money Bill
(All these can be introduced only on the recommendations of the President).
Judiciary empowered with Law-making and Executive Functions
1. Rule-making power of the High Courts and the Supreme Court.
2. Appointment of their officials and subordinate staff.
The idea of Montesquieu as to the “strict separation of powers” is thus not practically
followed.

Ram Jawaya Kapoor v. State of Punjab (1955)

Supreme Court, Bench Strength: 5
Judges: B.K. Mukherjea, C.J. and Vivian Bose,
- A petition was filed under Article 32. The petitioners claimed that their fundamental right
under Article 19(1)(g) was violated.
- They contended that the restriction under Article 19(6) can be made only through proper
legislation, not through executive orders.
- The petition sought to nullify the notifications of the Government of Punjab.
Facts:
- The petitioners approached the SC claiming their fundamental right to carry on trade.
- Through notifications, the Government tried to control and have monopoly in the business of
school-book publishing and sale.
- An Executive Order issued in 1950 stated that in three subjects, namely History, Agriculture
and Social Studies, the State Government would prepare, print and sell books. Thereby, the
ousted the book publishers from making books in these subjects.
- In 1951, another Executive Order stated that in other subjects, once the book publisher was
approved, the Government would list them as approved and such publishers would be bound to
pay 5% royalty to the Government.
- On 9th August 1952, the third Executive Order was passed. It provided that all authors and
publishers could submit their work to the Government (other than in subjects of History,
Agriculture and Social Studies), and the Government would consider them. Once approved, it
would be printed, published and sold by the Government. The Government would pay such
publishers 5% royalty.
DELEGATED LEGISLATION

IS DELEGATED LEGISLATION CONSTITUTIONAL?

Article 13 of the Indian Constitution supports delegated legislation. Articles 245 and 246
indicate the territorial law-making power of the Legislature.
Article 246(1) – Parliament can make law for matters enumerated in List I of the Seventh
Schedule, i.e. Union List.
Article 246(2) – Parliament and State Legislature can make law for matters enumerated in
List III of the Seventh Schedule, i.e. Concurrent List.
Article 246(3) – State Legislature can make law for matters enumerated in List II of the
Seventh Schedule, i.e. State List.

Queen v. Burah (1873)

The Governor General Council passed a law in 1869 (Act 22 of 1869), providing for the
power of the Lieutenant Governor to remove the jurisdiction of normal civil and criminal
Courts and to vest it in the officer appointed by the Lieutenant Governor.
For the territory of Garo Hills, the Act provided under Section 9, the power to the
Governor General to extend it to other areas. The Lt. Governor extended this law to Khasi
and Jaintia Hills pursuant to Section 9.
Burah, who was from Khasi Hills, committed the offence of murder. Hence, he was not
tried by a criminal Court, but an officer appointed by the Lt. Governor. An order of death
sentence was made against Burah.
This death sentence was challenged before the Calcutta HC. It was held that Section 9 was
ultra vires to the powers of the Indian Legislature. The Indian Legislature, being the
delegate of the British Parliament, could not further delegate (A delegate cannot further
delegate – delegatus non potest delegare). The HC thus struck down the provision.
This was challenged before the Privy Council.
Question before the Court:
Whether the Act was within the legislative power of the Governor-General in Council? 
In the appeal, the Court held that the delegation involved in the matter was conditional
legislation because the Governor was not authorized to make new law, but was empowered
to merely extend the provisions of the Act already passed by a competent legislature upon
the fulfillment of certain conditions.
 The Court further held that the Indian Legislature was not a delegate of the British
Parliament (LIBERAL APPROACH).

DELEGATED LEGISLATURE IN THE UNITED STATES OF AMERICA

The Constitution of the United States is base don the Doctrine of Separation of Powers. Thus,
they do not believe in the concept of delegated legislation.
Field v. Clark (1892)
The U.S. Supreme Court held that the fact that the Congress cannot delegate legislative
power to the President is a principle universally recognized and vital to the integrity and
maintenance of the system of the Government ordained by the Constitution.

The three hurdles to delegated legislation are:

(1) Doctrine of Separation of Powers
(2) Delegatus non potest delegare
(3) The Congress gets its power from the people (and is thus a delegate of the people)
Panama Refining Company v. Ryan (1935)
The National Industrial Recovery Act, under Section 9(c), the President was authorized
to regulate or prohibit transportation in inter-State and foreign commerce of petroleum and
the products thereof, produced or withdrawn from the storage in excess of the amount
permitted to be produced.
Under this provision, the President issued an order which prohibited the transportation in
inter-State and foreign commerce of petroleum. By way of this prohibition order, an
offence was created, imposing fine and imprisonment for the disobedience of the order.
Panama Refining Company in Texas was made liable under this Presidential order. Federal
officials, acting under the order, imposed punishment on the Company.
In order to examine the legitimacy, the Court put forth the following questions:
(1) Whether transportation and prohibition are provided in the legislative policy?
(2) Whether the Congress has set a standard for the President’s action?
(3) Whether the Congress has required any finding by the President in exercise of
authority to enact a Legislation providing for prohibition?
The majority, in this case, held that the parent Act did not provide for rules or guidelines
for the Executive to make law. Further, they held that the conditions or circumstances in
which the President could exercise such power is not prescribed in law (i.e. in the parent
Act).
 No criteria had been laid down (in law) by the Legislature to govern Presidential action.
Law did not require any finding from the President. The law provided for unlimited
authority (uncontrolled) to regulate and prohibit inter-State and foreign commerce of
petroleum.
All these reasons indicate that there exists no legislative policy that controls the prohibitory
power of the Executive in this regard.
The majority therefore held that there existed no policy, standards, thereby conferring
unlimited authority on the Executive. The order (delegated legislation) was held to be
invalid.
In the minority judgement, Justice Benjamin Cardozo, stated that when the Legislature
retains the power to repeal, anything and everything can be delegated to the Executive
[later evolved into the Abdication test].

Schecter Poultry Corporation v. United States (1935)

[also referred to as the Sick Chickens case]
Under Section 3 of the National Industrial Recoveries Act, the President was authorized to
make Courts for fair competition for the governance of trades and industries. Acting under
this provision, the President created a Code containing an unfair method of competition.
This provided for punishment of such practices of unfair methods of competition as
offences.
This punishment prescribed was given for unfair method of competition in the name of the
power given to him for formulating a Code for fair competition.
In this case, the Court was not interested to look into the legislative policy or finding
(questions (1) and (3) of the Panama Refining Company Case). The Court only looked
into whether there was a standard for Presidential action.
The Court held that this delegated legislation is liable to be struck down since there existed
no standards in the parent Act governing Presidential action.

In this regard, it is important to note that till 1943, most delegated legislations were rejected
by the U.S. Courts. It was in National Broadcasting Company v. United States (1943), that
delegated legislation found authority.