Separation of Powers, Dispute Redressal and Comparative Constitutions

What the official syllabus says

Main Examination, Paper III: General Studies II (Governance, Constitution, Polity, Social Justice and International relations):

• 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 its variants: strict separation versus checks and balances
• Separation in the Indian Constitution: Article 50 (judiciary separated from the executive), Articles 121 and 211 (no discussion of judges’ conduct), Articles 122 and 212 (courts not to inquire into legislative proceedings), Article 361 (immunity of the President and Governors)
• Overlaps: ordinances (Articles 123 and 213), delegated legislation, the executive drawn from the legislature, judicial appointments
• Checks and balances: judicial review (Articles 13, 32, 226), impeachment and removal, parliamentary control of the executive, the President’s return of bills
• Separation of powers as a basic feature: Indira Nehru Gandhi v Raj Narain (1975)
• Judicial activism, judicial overreach and judicial restraint; public interest litigation (S. P. Gupta, 1981)

Separation of powers in the case law

• Ram Jawaya Kapur (1955): the Constitution does not adopt a rigid separation of powers
• In re Delhi Laws Act (1951): limits on delegating essential legislative functions
• Re-promulgation of ordinances: D. C. Wadhwa (1986) and Krishna Kumar Singh (2017)
• Judicial review of the Speaker’s decisions under the Tenth Schedule: Kihoto Hollohan (1992)
• Judicial appointments and the executive: the Judges cases and the NJAC judgment (2015)

Dispute redressal mechanisms and institutions

• Supreme Court’s original jurisdiction in Centre-State and inter-state disputes (Article 131); advisory jurisdiction (Article 143)
• Inter-state river water tribunals (Article 262); Inter-State Council (Article 263)
• Tribunals under Articles 323A and 323B (42nd Amendment); Central Administrative Tribunal (Administrative Tribunals Act, 1985); L. Chandra Kumar (1997); Tribunals Reforms Act, 2021
• Alternative dispute resolution: arbitration and conciliation (Arbitration and Conciliation Act, 1996), mediation (Mediation Act, 2023), Lok Adalats and legal aid (Legal Services Authorities Act, 1987)
• Gram Nyayalayas (2008 Act), commercial courts (2015 Act), consumer commissions (Consumer Protection Act, 2019)
• Issues: pendency, delays, vacancies in tribunals, executive control over tribunal appointments, enforcement of awards

Comparison of the Indian constitutional scheme with other countries

• United Kingdom: unwritten constitution, parliamentary sovereignty, constitutional monarchy, cabinet system, rule of law; how India’s Parliament differs (limited by a written Constitution and judicial review)
• United States: presidential system, rigid constitution, strict separation, dual citizenship, equal representation of states in the Senate, impeachment, “due process of law” compared with India’s “procedure established by law”
• Canada and Australia: federation with a strong centre, residuary powers, concurrent list, joint sitting
• Ireland (Directive Principles), Germany under the Weimar Constitution (suspension of rights in emergency), the former USSR (Fundamental Duties), South Africa (amendment procedure), France (republican ideals), Japan (procedure established by law)
• Semi-presidential system of France; instruments of direct democracy in Switzerland (referendum, initiative)
• Comparing amendment procedures, upper houses, judicial review, federal arrangements and emergency powers
• Lessons and debates: presidential versus parliamentary form for India, constructive vote of no-confidence (Germany)

Points of comparison at a glance

• Head of state: elected President (India), hereditary monarch (United Kingdom), executive President (United States)
• Upper house: Rajya Sabha seats allotted to states broadly by population, against equal representation of states in the US Senate
• Rights: Part III with reasonable restrictions, against the US Bill of Rights and the largely unwritten British tradition
• Courts: India’s Supreme Court with original, appellate, writ and advisory jurisdiction, against the US Supreme Court and Germany’s Federal Constitutional Court
• Federal design: India’s states can be reorganised by Parliament (Article 3), unlike the states of the United States

Overlaps

• The optional subjects Political Science and International Relations, Public Administration and Law (Optional Subject) study comparative government in greater depth.