Mains Practice Questions

Introduction

The doctrine of separation of powers is a fundamental principle underlying India's constitutional framework, aiming to prevent the concentration of power and ensure checks and balances among the legislature, executive, and judiciary.

Body

Separation of Powers in India:

• Doctrine: While not explicitly mentioned in the Constitution, this doctrine is derived from Article 50, 121, 122, 211, and 361 of the Constitution and woven into its fabric of Indian democracy through various provisions.
• Key features:
  • Legislature (Parliament): Makes laws
  • Executive (Government): Implements laws
  • Judiciary (Courts): Interprets laws and ensures constitutional compliance
• Example: The landmark case of Kesavananda Bharati v. The State of Kerala (1973) established the 'basic structure doctrine', emphasizing that even Parliament's power to amend the Constitution is subject to judicial review, thus reinforcing the separation of powers.

Challenges to Effective Implementation:

• Judicial Overreach: While judicial review is crucial for maintaining checks and balances, excessive judicial activism can blur the lines between the judiciary and other branches.
  • In Mohit Mineral Pvt. Ltd. v. Union of India, the Supreme Court held that the recommendation of the GST council is only recommendatory and not binding, that can be considered as judicial overreach.
• Executive Dominance: The executive often overpowers other branches, particularly through ordinance-making powers and control over the bureaucracy.
  • Example: The repeated re-promulgation of the Enemy Property Ordinance between 2010 and 2016.
    • In Krishna Kumar Singh v. State of Bihar Case 2017, the Supreme Court of India ruled that repeatedly re-promulgating ordinances without legislative consideration is unconstitutional and a fraud on the Constitution
• Erosion of Legislative Scrutiny: Declining number of parliamentary sittings and hasty passage of bills. Sitting days in Lok Sabha have declined from an annual average of 121 days during 1952-70 to 68 days since 2000.
  • Example: The Farm Bills of 2020 were passed in Rajya Sabha by voice vote amid protests.
• Weak Institutional Autonomy: Bodies like the ED, CBI, and CVC face challenges to their independence.
  • Example: Controversy over the removal of CBI Director Alok Verma in 2019.
  • In Vineet Narain v. Union of India, SC laid down guidelines for CBI's functioning to ensure its autonomy.

Measures to Strengthen the System:

• Judicial Reforms:
  • Transparent Appointment Process: Establish a new system for judicial appointments, balancing judicial independence and accountability.
    • This may include a modified version of the National Judicial Appointments Commission (NJAC) with adequate safeguards.
  • Judicial Accountability Law: Enact a comprehensive law to ensure judicial accountability without compromising independence.
    • This may include a refined version of the Judicial Standards and Accountability Bill, 2010.
• Legislative Strengthening:
  • Increase Parliamentary Sittings: Mandate a minimum number of working days for Parliament.
  • Empower Parliamentary Committees: Strengthen the role of Department-related Standing Committees in scrutinizing bills and policies.
    • Make it mandatory for all important bills to be referred to relevant committees before being passed.
  • Reform Anti-Defection Law: Amend the Tenth Schedule to balance party discipline and legislative independence.
    • Allow free voting on all issues except no-confidence motions and money bills.
• Executive Accountability
  • Strengthen Lok Pal: Fully implement and empower the Lokpal institution.
    • Ensure timely appointments and provide adequate resources for investigations.
  • Reform Civil Services: Implement comprehensive civil service reforms to ensure bureaucratic neutrality and efficiency.
    • Fixed tenures for key posts as recommended by the 2^nd Administrative Reforms Commission.
• Institutional Autonomy
  • Statutory Independence for Key Institutions: Enact laws to ensure functional and financial autonomy of institutions like the ED, CBI, and CVC
    • The Supreme Court's guidelines in the Vineet Narain case for CBI autonomy could be codified into law.

Conclusion

While India's separation of powers faces challenges, it remains a vital democratic principle. The dynamic interplay between the three branches, guided by judicial pronouncements and public discourse, continues to shape and refine this doctrine in the Indian context. The key lies in maintaining a delicate balance, ensuring robust checks and balances, and fostering institutional integrity and public trust.