Separating Powers through the Constitution: A Comparison of India and Australia
V Arora, P Babie, L Neudorf & A Tomer, eds, Comparative Reflections on the Constitutional Models of India and Australia (Bloomsbury, 2019) (published as two chapters in this edited collection)
59 Pages Posted: 19 Sep 2019
Date Written: 2019
This chapter surveys the constitutional architecture and key jurisprudential developments of India and Australia to better understand the separation of powers in each country. It then considers the similarities and differences observed, which stands to enrich our understanding of the idea of separating powers more generally, especially in relation to how this important principle takes shape and operates in different legal systems. Among other things, the comparison reveals the flexible nature of the separation of powers, which responds to features of the constitutional design and a variety of local contexts while protecting core institutional functions from interference. These core functions attempt to provide balance by preventing the accumulation of state powers in a single institution at the expense of the others. By preserving the exclusivity of certain functions, the separation of powers also promotes specialisation and expertise that can lead to efficient and skilled administration. And perhaps most importantly, the protection of core functions ensures that each institution maintains a meaningful opportunity to contribute to and participate in a model of shared governance. While the separation of powers works to maintain institutional integrity, each institution is not a ‘watertight compartment’ sealed off from the others. Each must also be checked by the others through prescribed controls that provide a measure of oversight and accountability in the exercise of state power.
Keywords: separation of powers, india, australia, constitutional law, constitutions, judicial independence, comparative law, comparative constitutional law, public law, doctrinal evolution, constitutions, institutional design
Suggested Citation: Suggested Citation