Separation of Powers and the Potential for Constitutional Dialogue in India
5:2 Journal of International and Comparative Law 363 (2018)
24 Pages Posted: 8 Aug 2018 Last revised: 5 Dec 2018
Date Written: December 4, 2018
Traditional separation of powers theory does not apply neatly to India. The Indian Constitution mandates independent commissions that exert additional checks and balances on the political system; it permits the President to issue ordinances that function like legislation; and it has been interpreted to require judges to have the final word on higher judicial appointments. This Article, a contribution to the JICL Special Issue on "Separation of Powers: Comparative Perspectives", focuses on a creeping and more nebulous challenge to separation of powers: the higher judiciary’s expanding writ jurisdiction in fundamental rights cases. Specifically, it examines the evolution of public interest litigation (PIL) in the Supreme Court and High Courts over the past two decades, where judges act in both quasi-executive and quasi-legislative roles. Drawing on theories of constitutional dialogue, the Article proposes how the Indian higher judiciary might retrench in its PIL jurisdiction by directing public attention to the most egregious executive failures and leaving the law-making to Parliament.
Keywords: Separation of Powers, Constitution of India, Public Interest Litigation, Supreme Court of India, High Courts of India, Constitutional Dialogue
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