The Doctrine of Separation of Powers divides the functions of government into legislative, executive, and judicial branches. This division ensures that no single branch can garner excessive power. Furthermore, the Indian Constitution establishes norms for the relationship between these branches and includes checks and balances to maintain equilibrium.
This doctrine recently returned to the spotlight when Vice-President of India referenced the landmark 1973 Kesavananda Bharati case. The Supreme Court, during this case, ruled that although Parliament has the right to amend the constitution, they cannot alter its basic structure.
Instruments of Checks & Balances
The legislature, executive, and judiciary all have unique controls. The legislature, for instance, can impeach judges and amend laws declared ultra vires or above their authority by the Court. It also has the power to dissolve the Government through a no-confidence vote and assess executive tasks.
On the other hand, the executive branch can make appointments to the office of Chief Justice and other judges. It additionally holds powers under delegated legislation and the ability to regulate procedures and conduct business.
The judiciary branch uses Judicial review to check the executive action for constitutional violations. Also, it ensures the unamendability of the constitution under the basic structure doctrine, as established in the Kesavananda Bharati Case 1973.
Challenges with the Separation of Powers
Several issues can arise surrounding the doctrine of Separation of Powers. For instance, in recent times, weakened opposition in India has diminished the effectiveness of checks and balances which are integral to preventing democracy from devolving into majoritarianism.
The judiciary has also shown an aversion to checks and balances by deeming the 99th constitutional amendment, which provided for the establishment of the National Judicial Appointments Commission (NJAC), as ultra-vires. This system could prevent inappropriate politicization and improve appointment quality, selection fairness, judicial diversity and public confidence.
Executive excesses such as over-centralisation of power, weakening of public institutions, and passing laws that curb freedom of expression while strengthening state security are also problematic. An instance of this is the judiciary’s hyper-activism in producing judgements viewed as laws and rules, thereby infringing on the domain of the legislature and executive.
The Basic Structure of the Constitution
The Constitution of India is an organic document that must adapt to societal changes over time. The individuals who framed the constitution acknowledged that no generation can claim absolute wisdom and should not dictate the structure of future governments. However, it is crucial to use this amending power judiciously.
Reviewing Previous UPSC Civil Services Examination Questions
In the 2020 Prelims, one question revolved around two statements: The Constitution of India defines its ‘basic structure’ in terms of federalism, secularism, fundamental rights, and democracy, and the Constitution of India provides for ‘judicial review’ to safeguard citizens’ liberties and preserve constitutional ideals. Notably, neither of these statements were correct, as the constitution does not explicitly define the basic structure or provide for judicial reviews.
Several Mains questions have asked about topics such as judicial activism and the role it plays in promoting democracy, the resort to ordinances and potential violations of the separation of power doctrine, the principle of checks and balances in the Indian Constitution, and the issue of judicial legislation being antithetical to the doctrine of separation of powers.
These questions show the importance of understanding the underlying principles of the Constitution and how they are applied and interpreted in the contemporary context.