Separation of Powers and Dispute Redressal
3 questions worth 35 marks, from 2019 to 2024.
2019
1 question2019 · Q110 marks150 words
Do you think that Constitution of India does not accept principle of strict separation of powers rather it is based on the principle of 'checks and balance'? Explain.
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Yes. The Constitution separates functions, not persons. The organs are joined by design.
Where strict separation is absent
Ministers sit in Parliament: The executive is drawn from the legislature.
The President is part of Parliament: Article 79 places the President inside Parliament, with the two Houses.
The executive legislates: It issues ordinances under Article 123 and frames delegated rules.
The legislature judges: It removes judges by address, and punishes breach of privilege.
The judiciary frames rules: Article 145 lets the Court frame its own procedure.
Where the checks lie
Courts on laws: Judicial review under Articles 13, 32 and 226 tests every law.
Parliament on the executive: Questions, motions and control over money keep it answerable.
What the Court has held
Ram Jawaya Kapur, 1955: There is no strict separation, though the functions remain distinct.
Indira Nehru Gandhi, 1975: Parliament cannot decide an election dispute, since that is judicial work.
The Constitution chose balance over walls. Each organ checks the others, and none may replace them.
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Decode
A yes or no question with the answer suggested. Agree, then prove it.
Implicit demand
Show both sides. Where separation fails, and where the checks work.
Architecture
The position → absence of strict separation → the checks → case law → verdict.
Articulation
Anchor: Articles 79, 123, 145, 13, 50, and three cases. Money line: the Constitution chose balance over walls.
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Where strict separation is absent
The United States follows a stricter model. Cabinet members cannot sit in Congress.
Montesquieu gave the classical theory of separation.
The Speaker decides disqualification under the Tenth Schedule. That is judicial work.
Tribunals exercise judicial power under executive departments.
Money bills need the recommendation of the President under Article 117.
Where the checks lie
The executive has a role in appointments and in creating posts.
Article 121 bars discussion in Parliament on the conduct of a judge.
Article 122 bars courts from questioning parliamentary procedure.
The Comptroller and Auditor General reports to Parliament, not to the government.
Article 74 makes ministerial advice binding on the President.
Case law worth carrying
Ram Jawaya Kapur v. State of Punjab, 1955 is the starting point.
Kesavananda Bharati, 1973 placed separation of powers in the basic structure.
Indira Nehru Gandhi v. Raj Narain, 1975 struck down a clause deciding an election dispute.
Delhi Laws Act case, 1951 allowed delegation, but not of essential legislative function.
Madras Bar Association, 2014 limited how far tribunals may replace courts.
2020
1 question2020 · Q1215 marks250 words
Judicial Legislation is antithetical to the doctrine of separation of powers as envisaged in the Indian Constitution. In this context justify the filing of large number of public interest petitions praying for issuing guidelines to executive authorities.
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Judicial legislation means the court laying down rules. The objection is sound. The practice still has a defence.
Activism and overreach are not the same
Judicial activism: The court enforces a right that the executive has been ignoring for years.
Judicial overreach: The court takes over work that the Constitution gives to another organ.
Activism in practice: Vishaka, 1997 framed rules against workplace harassment when no law existed.
Overreach in practice: K. Balu, 2016 banned liquor shops near highways, which is a policy choice.
A warning from the bench: Aravali Golf Club, 2008 warned judges against trying to run the country.
Why the objection holds
Law making sits elsewhere: Articles 245 and 246 place law making with Parliament and the state legislatures.
Courts lack the tools: A bench has no survey data, no consultation machinery and no budget.
Why the petitions are still justified
A right needs a remedy: Articles 32 and 226 promise a remedy, and a court cannot refuse it.
Silence was the problem: There was no law at all, so Vishaka held the field until Parliament acted.
Parliament did act: The law on workplace harassment came in 2013 and replaced those guidelines.
Custody and institutions: D. K. Basu, 1997 laid down arrest rules. Vineet Narain, 1997 gave the CVC its shape.
Where the line should sit
Fill a gap, do not occupy the field: A guideline should lapse the moment the legislature passes a statute.
Say so in the order: Vishaka stated on its face that the rules would hold until a law was made.
Public interest petitions answer legislative silence. They prompt a statute. They cannot replace one.
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Decode
A statement is given as true. Then justify a practice that seems to contradict it.
Implicit demand
The whole answer turns on one distinction. Activism fills a gap. Overreach takes over a field.
Architecture
The distinction → why the objection holds → why the petitions are justified → where the line sits → verdict.
Articulation
Anchor: Articles 245, 246, 32 and 226, Vishaka and the 2013 Act, K. Balu, Aravali Golf Club, D. K. Basu, S. P. Gupta. Money line: they prompt a statute, they cannot replace one.
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Activism and overreach
Article 142 allows an order needed for complete justice. It is the widest power.
Article 141 makes a declaration of law by the Supreme Court binding on all courts.
M. C. Mehta cases built the polluter pays rule and absolute liability.
Prakash Singh, 2006 gave seven directions on police reform. Most states have not complied.
The Court has itself said that continuing mandamus should not become administration.
PIL misuse has grown. Some petitions serve publicity or private rivalry.
Why the petitions are still justified
Vishaka v. State of Rajasthan, 1997 relied on Articles 14, 15, 19 and 21. It also used an international convention.
D. K. Basu v. State of West Bengal, 1997 guidelines now sit in the criminal procedure law.
Directive Principles are not enforceable. Courts have read some of them into Article 21.
Hussainara Khatoon, 1979 brought speedy trial into Article 21 and freed undertrials.
Court appointed committees can gather facts a bench cannot.
Where the line should sit
A sunset clause in the order itself, as Vishaka used.
Continuing mandamus keeps a case alive without the Court running the department.
Costs on frivolous petitions protect the docket.
Refusing a matter already before a tribunal or a committee.
The real cure is legislative attention. Guidelines are the symptom, not the disease.
2024
1 question2024 · Q210 marks150 words
Explain and distinguish between Lok Adalats and Arbitration Tribunals. Whether they entertain civil as well as criminal cases?