Separation of Powers, Dispute Redressal and Comparative Constitutions

What the official syllabus says

HCS Main Written Examination, Paper IV: General Studies-II:

• Separation of powers between various organs dispute redressal mechanisms and institutions.
• Comparison of the Indian constitutional scheme with that of other countries.

Topics in detail

Separation of powers

• The doctrine (Montesquieu) and the Indian version: functional separation with checks and balances
• Article 50: separation of the judiciary from the executive in public services
• Ram Jawaya Kapur v. State of Punjab (1955): no rigid separation in India
• Legislative checks: questions, motions, committees, impeachment, budget control
• Executive checks: appointments of judges, ordinances, pardoning power (Articles 72 and 161)
• Judicial checks: judicial review (Articles 13, 32 and 226), review of constitutional amendments
• Mutual restraints: Articles 121 and 211 (no discussion of judges' conduct), 122 and 212 (courts not to inquire into House proceedings)
• Judicial activism, judicial overreach and judicial restraint; public interest litigation
• Delegated legislation and its control

Dispute redressal mechanisms and institutions

• Supreme Court's original jurisdiction in Centre–State and inter-State disputes (Article 131)
• Inter-State river water disputes: Article 262 and the Inter-State River Water Disputes Act, 1956
• Tribunals under Articles 323A and 323B (42nd Amendment); Administrative Tribunals Act, 1985; Tribunals Reforms Act, 2021
• Alternative dispute resolution: arbitration (Arbitration and Conciliation Act, 1996), mediation (Mediation Act, 2023), conciliation
• Lok Adalats and legal aid under the Legal Services Authorities Act, 1987; Article 39A
• Gram Nyayalayas Act, 2008; Commercial Courts Act, 2015; consumer commissions under the Consumer Protection Act, 2019
• Ombudsman bodies: Lokpal and Lokayuktas; banking and insurance ombudsmen
• Pendency of cases and judicial reform

Comparison with other countries

• United Kingdom: unwritten constitution, parliamentary sovereignty, constitutional conventions, fused executive
• United States: presidential system, strict separation of powers, “due process of law”, judicial review, rigid amendment procedure, dual citizenship of State and federation
• “Procedure established by law” (Article 21) and the effect of Maneka Gandhi v. Union of India (1978)
• Canada and Australia: federations with residuary powers placed differently; Australia's Concurrent List
• France: semi-presidential system; Germany: constructive vote of no confidence, Federal Constitutional Court
• Switzerland: direct democracy, referendum and plural executive
• Japan: constitutional monarchy with a parliamentary system; renunciation of war (Article 9 of its constitution)
• Comparing upper Houses: Rajya Sabha, House of Lords, US Senate
• Comparing amendment procedures, emergency powers and the place of the head of state

Comparison at a glance