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.