B.A. LL.B. (Five Years) Sem 5 Administrative Law 2014 Jun Question Paper with Solutions

For full marks, cover: the meaning of separation of powers (Montesquieu, 1748: three organs, three functions, separate persons); the U.K.: legislature and executive fused through the Cabinet (Bagehot), Parliament sovereign, the judiciary kept apart (Act of Settlement 1701; Constitutional Reform Act 2005; Supreme Court from 1 October 2009), the courts checking the executive (Entick v. Carrington; Miller, 2019); the U.S.A.: three vesting clauses, separate personnel (Article I, section 6), checks and balances (veto, Senate consent, impeachment), judicial review (Marbury v. Madison), cases enforcing the line (Youngstown; Chadha; the non-delegation cases), where it bends (agencies); a comparison table; a short word on India; a conclusion on the extent in each country.

Meaning of separation of powers

Every government does three kinds of work. It makes laws, it carries them out, and it decides disputes under them. These are the legislative, executive and judicial functions. Separation of powers means that each function should belong to a different organ. In its full form, it has three parts.

The United Kingdom: fusion, not separation, of two organs

1. The executive sits inside the legislature. The Prime Minister and the Ministers are members of Parliament, mostly of the House of Commons. The Government holds office only while it keeps the confidence of the Commons. Walter Bagehot, in The English Constitution (1867), called this the "efficient secret" of the system. He described it as a close union, a nearly complete fusion, of the executive and legislative powers. The link between them is the Cabinet. So the first and third parts of the doctrine are not followed. The same persons lead both organs.

2. The executive makes much of the law. Parliament passes Acts in broad terms. Ministers then make most detailed rules as statutory instruments. Ministers also control the business of the Commons through their majority. In practice, the Government decides most of what Parliament enacts.

3. Parliament is sovereign. No court in the U.K. can strike down an Act of Parliament. This is the opposite of the American position. The judiciary cannot check the legislature's laws, though it interprets them.

4. The judiciary is kept apart. Here the U.K. does follow the doctrine, and more closely now than before.

5. The courts check the executive. Though they cannot review Acts, the courts review what Ministers do. Entick v. Carrington (1765) 19 State Tr 1029 is the classic case. King's messengers searched John Entick's house for hours and seized his papers. They acted on a warrant from a Secretary of State. The court held the search unlawful, because no law authorised such a warrant. The executive must point to law for what it does.

The modern example is R (Miller) v. Prime Minister, [2019] UKSC 41, decided on 24 September 2019. The Prime Minister had advised the Queen to prorogue (suspend) Parliament for five weeks. Eleven Justices held unanimously that the question was one for the courts. A prorogation is unlawful if, without reasonable justification, it stops Parliament from carrying out its constitutional functions. No justification was given. The prorogation was therefore void, and Parliament had never been prorogued. The courts protected Parliament against the executive.

Extent in the U.K. The U.K. follows the doctrine only for the judiciary. Between the legislature and the executive there is fusion, not separation. Its safeguards come from other sources: ministerial responsibility to Parliament, the independence of judges, and judicial review of executive action.

• Treaties need the consent of two-thirds of the Senators present. Judges, ambassadors and senior officers are appointed with the Senate's advice and consent.
• The House of Representatives has the sole power of impeachment. The Senate tries it, and conviction needs two-thirds of the members present.
• Congress controls money and creates the lower courts.

4. Judicial review. In Marbury v. Madison, 5 U.S. 137 (1803), William Marbury asked the Supreme Court for mandamus to obtain his commission as a justice of the peace. He relied on section 13 of the Judiciary Act 1789. Chief Justice Marshall held that this section wrongly enlarged the Court's original jurisdiction. It was therefore void, and the writ could not issue. He wrote: "It is emphatically the province and duty of the judicial department to say what the law is." From this case the courts gained the power to strike down Acts of Congress.

3. Congress cannot hand over its law-making without a standard. In Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), the Court struck down parts of the National Industrial Recovery Act. They gave the President power with no guiding standard. The general test comes from J.W. Hampton Jr. and Co. v. United States, 276 U.S. 394 (1928). Congress must lay down "an intelligible principle". Since the 1930s that test has been applied leniently.

Where the American system bends

Even the U.S.A. does not follow the doctrine rigidly. The President takes part in law-making through the veto. The Senate takes part in executive work through appointments and treaties. The courts shape the law when they interpret the Constitution. Above all, modern federal agencies combine all three functions. One commission may make rules, enforce them and decide disputes about them. Delegated legislation and administrative adjudication grew in the U.S.A. just as in the U.K.

The two systems compared

A word on India

India took the parliamentary form of the U.K. It took a written Constitution and judicial review from the United States. In Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, the Supreme Court said the Constitution has not recognised the doctrine in its absolute rigidity. The functions of the organs are, however, sufficiently differentiated. So India stands between the two models studied here.

Conclusion. Separation of powers is followed in both countries, but to very different extents. In the U.K., the legislature and executive are fused through the Cabinet (Bagehot), and Parliament is sovereign. Only the judiciary is separated, and the Constitutional Reform Act 2005 and the Supreme Court of 2009 made that separation real. The courts still check the executive, as Miller (2019) showed. In the U.S.A., the Constitution vests the three powers in three organs and keeps their personnel apart. It then joins them through checks and balances. The courts enforce the line (Marbury, Youngstown, Chadha). Even there, agencies combine functions. Neither country follows the doctrine strictly. The U.S.A. comes much closer to it than the U.K.