UPSC CSE Prelims 2024

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


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. 



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