Rethinking Separation of Powers
This panel will discuss certain pressures that complicate the traditional tripartite understanding of separation of powers. Javeri will discuss the various theoretical attempts to explain or incorporate changes in public administration over several decades, and the continuing gaps in these theories to successfully discharge their burden of explanation. Khaitan will argue that the tripartite separation theories need to make space for a fourth–guarantor–branch of the state, already in place in the constitutional practice in several states. Guarantor branch institutions are constitutional institutions that seek to make it sufficiently credible that certain specific constitutional norms will be realised/respected. Hailbronner will argue that traditional systems of checks & balances are ill-equipped to deal with institutional malfunction or failure. She will explore the extent to which institutional failure & dysfunction legitimate the intervention of other institutions.