Doctrine of Separation of Powers

Kesavananda Bharati Case 1973

• In the Kesavananda Bharati case, relief was sought against the Kerala government vis-à-vis two state land reform laws, which imposed restrictions on the management of the religious property.
  • The case was challenged under Article 26, concerning the right to manage religiously owned property without government interference.
  • The question underlying the case: Was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, or abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
• Ruling: The Constitutional Bench in the Kesavananda Bharati case ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.
• However, the court did not define the term ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.

Doctrine of Separation of Powers

• Separation of powers is the division of the legislative, executive, and judicial functions of government.
  • Article 50 states that states shall take steps to separate the Judiciary from the Executive.
• The constitutional demarcation through separation of power prevents the concentration of excessive power by any branch of the government.
• The Indian Constitution lays down the structure and defines and determines the role and functions of every organ of the State and establishes norms for their inter-relationships and checks and balances.

Instruments of Checks & Balances

• Legislature Control:
  • On Judiciary: Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidate them.
  • On Executive: Through a no-confidence vote it can dissolve the Government. Power to assess the works of the executive through the question hour and Zero hours.
• Executive Control:
  • On Judiciary: Making appointments to the office of the Chief Justice and other judges.
  • On Legislature: Powers under delegated legislation. Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of the Constitution.
• Judicial Control:
  • On Executive: Judicial Review i.e., the power to review executive action to determine if it violates the Constitution.
  • On Legislature: Unamendability of the constitution under the basic structure doctrine pronounced by the Supreme Court in Kesavananda Bharati Case 1973.

Issues with the Separation of Powers

• Weakened Opposition in India: Democracy works on the principle of checks and balances. It is these checks and balances that prevent democracy from turning into majoritarianism.
  • In a Parliamentary system, these checks and balances are provided by the opposition party.
  • However, the majority of a single party in the Lok Sabha has diminished the role of an effective opposition in the Parliament.
• Judicial Opposition: The Supreme Court has held the 99^th constitutional amendment, which provided for the establishment of the National Judicial Appointments Commission as ultra vires.
  • The NJAC could guarantee the independence of the system from inappropriate politicization, strengthen the quality of appointments, enhance the fairness of the selection process, promote diversity in the composition of the judiciary, and rebuild public confidence in the system.
• Excessive Judicial Activism: In many recent judgments, the SC has become hyper-activist in making judgements that are deemed as laws and rules. This transgresses the domain of legislature and executive.
• Executive Excesses: The executive in India is accused of over-centralisation of power, weakening of public institutions and passing laws to strengthen law, order & security of the state but curbing freedom of expression as well.

Basic Structure Doctrine of the Indian Constitution

• The basic structure doctrine is a common law legal doctrine that states that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature.
• There is no mention of the term “Basic Structure” anywhere in the Constitution of India. The idea evolved to protect and preserve the spirit of the constitution document.

Origin of Basic Structure

Elements Of The Basic Structure Doctrine

• The ‘basic structure’ doctrine has since been interpreted to include:
  • The supremacy of the Constitution,
  • The rule of law,
  • Independence of the judiciary,
  • Doctrine of separation of powers,
  • Sovereign democratic republic,
  • The parliamentary system of government,
  • The principle of free and fair elections,
  • Welfare state, etc.

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