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
Why should we have separation of powers?
- 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
Do we have complete separation of powers?
- 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
Indian Model compare to American Model?
- 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
Violation of Separation of Powers?
- Article 123, Executive has membership of Legislature
- Judicial Overreach → Vishakha Guidelines, Policy Decisions etc.
The challenges with Indian Model of Separation of Power?
- 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.
The doctrine of basic structure?
- 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) Supremacy of Legislature vs Judiciary
- (b) Article 13 over Article 368
- (c) Individual Rights vs Community Rights
- (d) Socialism vs Capitalism & Fundamental Rights over the DPSP
Can Constitution be amended?
- Four Judgements: Shankari Prasad →
- (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;
- Sajjan Singh vs Rajasthan →
- (a) Upheld the distinction between Constituent Power & Legislative Power
- (b) CAA cannot be reviewed
- Golak Nath vs State of Punjab →
- (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
Which features of Constitution form part of Basic Structure?
- 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;
What good has the doctrine done?
- Protected the Constitution and Indian State from Collapse (how?)
- Protected the Nation from moving into a sharply socialist direction
- Provided the balance between →
- (a) individual rights and community rights
- (b) fundamental rights and DPSC
- (c) capitalism vs socialism.
The criticism of Basic Structure Doctrine?
- 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.