The Indian Scheme

The gap kept open is the judicial one, and article 50 is its statement of intent. It is headed Separation of judiciary from executive and reads: "The State shall take steps to separate the judiciary from the executive in the public services of the State." It is a directive principle, so it binds policy and not courts, as [The Directive Principles] explains.

Two articles that protect the legislature from the courts

These two show the separation running in the direction students forget: protecting Parliament from the judges, and the judges from Parliament.

Article 121, Restriction on discussion in Parliament: "No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided."

Article 122(1), Courts not to inquire into proceedings of Parliament: "The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure." Clause (2) puts the officer or member who regulates procedure or maintains order beyond "the jurisdiction of any court in respect of the exercise by him of those powers".

Broken down, the pair works like this.

1. A judge's conduct on the bench may not be debated on the floor at all. The one exception is the removal motion under article 124(4), which needs an address by each House supported by a majority of the total membership and by two thirds of those present and voting, on the ground of "proved misbehaviour or incapacity".
2. In return, a court may not set aside what a House has done because the House broke its own procedure. Note the exact words: the bar is on "any alleged irregularity of procedure", not on a challenge that the proceeding was unconstitutional or wholly without jurisdiction, and that distinction is where the litigation lives.
3. Articles 211 and 212 do the same for a State Legislature. Article 105 separately secures freedom of speech in Parliament and immunity for anything said or any vote given there, taken up in [Legislative Privilege].

The checks each organ holds

The scheme is best learned as a list of weapons.

Two entries there cause almost every quarrel in this module: the power to amend the Constitution and the power to review what has been amended point at each other. See [The Amending Power] and [The Basic Structure].

The first case

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, (1955) 2 SCR 225, decided 12 April 1955. Punjab took the printing and sale of school text books into its own hands by executive notifications, without a statute. Publishers squeezed out of the trade petitioned under article 32, arguing that the executive may not enter a trade unless the legislature has first authorised it, its function being only to execute laws already made.

Held. The petition failed. Article 162 "clearly indicates that the powers of the State executive do extend to matters upon which the state Legislature is competent to legislate and are not confined to matters over which legislation has been passed already". The Constitution has not recognised the doctrine "in its absolute rigidity", but the functions are "sufficiently differentiated", so no organ may assume functions "that essentially belong to another". A statute is needed where the Government wants powers "in addition to what they possess under ordinary law", and specifically "when it is necessary to encroach upon private rights". Expenditure here was covered by the appropriation Acts, and the publishers had no right that any book be prescribed, only "a chance or prospect".

Why it matters. It answers the question the doctrine is usually raised to ask in practice: may the executive act without a statute? Within the field on which the legislature could legislate, and short of touching private rights or public money without authority, it may. The doctrine keeps the executive out of the essential functions of the other two; it does not keep it idle until Parliament speaks.

The second case

Facts. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, (1973) 4 SCC 225, decided 24 April 1973. The head of a religious institution moved the Supreme Court in 1970 under article 32 against the Kerala Land Reforms Act 1963. While the case was pending the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments were passed and he was permitted to challenge them. The question became how far the amending power in article 368 reaches.

Held. Every provision may be amended "provided in the result the basic foundation and structure of the Constitution remains the same". Sikri C.J. said the basic structure "may be said to consist of the following features" and listed five, the fourth being "Separation of powers between the Legislature, the executive and the judiciary" and the others supremacy of the Constitution, a republican and democratic form of government, and its secular and federal character. Shelat and Grover JJ. put the point structurally: the Constitution "creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powers and functions entrusted to them", and though it does not lay down separation "in all its rigidity", it "envisages such a separation to a degree". They added that "the judicial review provided expressly in our Constitution by means of Article 226 and 32 is one of the features upon which hinges the system of checks and balances".

Why it matters. This is what raises separation of powers in India from a description to a limit. Article 50 cannot be enforced. The demarcation of functions can, because an amendment destroying it would destroy a basic feature. It is also the root of [Judicial Review]: if judicial review is the hinge of the checks and balances, removing it breaks the scheme.

Where the stresses and the strain are

MU's printed label is "Separation of powers : stresses and strain", and an answer that only describes the scheme has answered half the question. The strain sits at the joins, and there are four.

One, the legislature leaning on the executive. Modern statutes hand the executive the power to write the real rules. That is [Delegated Legislation], and the limit is the doctrine of excessive delegation.

Two, the executive doing judicial work. Tribunals, departmental adjudications and licensing bodies decide disputes. Ram Jawaya Kapur permits this "in a limited way"; how limited is [Tribunals].

Three, the legislature doing judicial work. A House punishing for contempt, a legislature validating a law after a court has struck it down, a constitutional amendment deciding a pending election dispute: each is the legislature adjudicating. This is the sharpest strain, and the case usually given for it, Indira Nehru Gandhi's case of 1975, is named without a citation because its report has not been read for this chapter. It belongs to [The Basic Structure].

Four, the judiciary doing executive and legislative work. Directions to frame guidelines, continuing supervision of an administration, judges appointing judges. See [Judicial Activism, Restraint and Overreach].

A worked example

Section 6 of a new Act provides that where a High Court has quashed a Government order, the Central Government may by notification declare the order to have been validly made from the date it was issued, and that the declaration shall be final and shall not be questioned in any court. Meera, whose order was quashed last year, finds it revived. Advise her.

Step one, which function, and which organ? Reopening a decided case between identified parties is adjudication, so on the definitions in [Separation of Powers: The Doctrine] this is the judicial function. It is being exercised by the executive, under a power Parliament gave it.

Step two, is the join itself unlawful? No: Ram Jawaya Kapur rules out any argument that the executive may never do anything judicial.

Step three, is this an assumption of an essential judicial function? Yes. A validating law may cure the defect a court identified and let the law operate afresh. What it may not do is direct that one decided case be treated as decided the other way without touching the defect, because that is not legislating, it is reversing a judgment.

Step four, the ouster clause. "Shall not be questioned in any court" cannot survive. On [Judicial Review] the power under articles 226 and 32 is itself part of the basic structure and cannot be excluded by statute.

Step five, how it is pleaded. Article 14, because the section singles out one class of quashed orders with no stated principle, and article 13(2).

What it does NOT mean

It does not mean India has no separation of powers. It has a demarcation of functions that courts enforce through the vesting articles and the basic structure. What it lacks is the American rule of personnel. A candidate who writes that the doctrine "does not apply in India" has overstated it the other way.

It does not mean article 122 puts Parliament beyond the courts. The bar is on a challenge founded on "any alleged irregularity of procedure". Substantive illegality is a different question.

It does not mean the Council of Ministers sitting inside Parliament is a defect. It is the design, and the check there is political, collective responsibility under article 75(3) and control of supply, not judicial.

Quick revision

• No rigid separation, but a clear demarcation: Ram Jawaya Kapur, "sufficiently differentiated", no organ to assume what "essentially belongs to another".
• Vesting articles: executive, 53 and 154; legislative, 245 and 246; judicial, 124 and 214 with 32 and 226. The executive is joined to the legislature on purpose: articles 74(1) and 75(3).
• Article 50 is a directive principle, covers only judiciary and executive, and only in the public services of the State.
• Article 121: no discussion of a judge's conduct except on a removal motion under article 124(4), for proved misbehaviour or incapacity. Article 122: no challenge to proceedings in Parliament for irregularity of procedure, irregularity and not illegality. Articles 211 and 212 are the State equivalents.
• Kesavananda Bharati: Sikri C.J.'s fourth basic feature is separation of powers between the legislature, the executive and the judiciary; Shelat and Grover JJ. on checks and balances, with judicial review under articles 226 and 32 as the hinge.
• The four stresses: delegated legislation, executive adjudication, legislative adjudication, judicial administration.

Test yourself

1. The Constitution nowhere enacts separation of powers. How, then, is the demarcation of functions effected? Name the vesting articles.

2. Why is article 50 confined to the judiciary and the executive, and what does its placement in Part IV do to its force?

3. Set out articles 121 and 122 and say what each organ gives up. What does article 122 not bar?

4. State what Kesavananda Bharati added to Ram Jawaya Kapur on this topic.

5. List the four places where the Indian scheme is under strain, and name the chapter that deals with each.

6. A State Act says a Bill's passage shall not be questioned even where the House had no quorum. Is that within article 212?