Indian Polity Notes Class-1 "The Doctrine of separation of powers"

The doctrine of separation of powers

horizontal distribution of power vs vertical distribution of power.
distribution of power among 3 organs of the state (Executive, Legislature, Judiciary)
each organ supreme in its sphere

Prudent Argument vs Moral Argument
With power comes responsibility; one Institution not capable of performing all functions
Prevents concentration of power in single body
provides system of checks and balances
provides legitimacy to the State.
Conflicting Trinity vs Harmonious Government
Constitutional Vision & Mandate → Article 50

Montesquieu’s Theory of Separation of Power → one person not in two or more organs, non-interference, one organ should not perform function of other, trias politica
No rigid / watertight separation → neither possible, nor desirable (Appointment of Judges)
Indian model → principle of flexibility & interdependency
Not possible in a Parliamentary form of govt → Executive part of Legislature

American System – Presidential System – Complete Separation of Power
Watertight/Complete Separation vs Fused Model (Ordinance Making Power, Parliamentary Majority of the Executive, Appointments to Judiciary, Doctrine of Complete Justice, President Decides Disqualification of Members of Parliament)
Based on Systems of Checks and Balances

Slows down decision making → checks and balances, too many stakeholders etc.
Tyranny of the Executive behind Parliamentary Majority
Judicial Action turns into Judicial Overreach (Ban on Sale of Alcohol, Policy Paralysis etc.)
Indian Model designed to suit Indian Polity & Indian Concerns post-Independence
Sacrifices speed and efficiency for checks and balances & prevention of power concentration
Complete separation neither feasible nor desirable Each organ must respect the sphere of others, harmonious balance needed.

Judicial innovation → Keshavananda Bharti Case → All Parts of the Constitution can be amended as long as it does not alter the basic character of the Constitution
Was the outcome of debate between

(a) Constituent Function vs Legislative Function; Amendment to Constitution not ordinary law; cannot be reviewed by Courts;
(b) Fundamental Rights can be amended by CAA = no protection of Article 13;

(a) No difference between ordinary Law and Amendment Law; constituent power and legislative power are not different
(b) Fundamental Rights cannot be amended; ‘sacrosanct’
(c) Doctrine of Prospective Ruling: judgement would apply to future and not to past judgements;

Keshavananda Bharti → Thirteen judge Bench: Creation of “Basic Structure” Filter parliament can amend any part of the Constitution, as long as it did not alter the basic structure; FR can be taken away; gave power to courts to decide constitutionality of amendments

Not enumerated by the Constitution or the Courts at one point of time
Evolve from time to time on basis of judicial pronouncements
Supremacy of the Constitution; Secularism; Parliamentary Form; Rule of Law; Judicial Review; Independence of Judiciary;

Basic Structure Doctrine → no mention in the Constitution
Judicial Invention → circumscribe the Legislature / Executive
Violative of Constitution as a Living Document → bound Parliament in perpetuity.
Judges decided the ends → discovered legal means to achieve them.
Indian Judiciary → most powerful in the World; era of Judicial Supremacy in the name Constitutional Supremacy
Counter Majoritarian; power to an unelected and self-appointed body.