Separation of Powers

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Separation of Powers in the Indian Constitution - Relationship

between Executive, Legislature and Judiciary

The three branches of the government are the executive, the legislature and the
judiciary. Although the three have distinct functions to perform, their scope sometimes
meet. In this article, you can read all about the relationship between the three arms of
the government for the UPSC exam polity section.

In India, a separation of functions rather than of powers is followed. Unlike in the US,
in India, the concept of separation of powers is not adhered to strictly. However, a
system of checks and balances have been put in place in such a manner that the
judiciary has the power to strike down any unconstitutional laws passed by the
legislature.

Today, most of the constitutional systems do not have a strict separation of powers
between the various organs in the classical sense because it is impractical. In the
following sections, we will see the prevailing system in India, what the relationship
between each organ is, and the constitutional provisions thereof.

Before proceeding with the relationships, let us examine in brief what the functions of
each organ of the government are.

What is the Legislature?

The chief function of the legislature is to enact laws.

It is the basis for the functioning of the other two organs, the executive and the
judiciary.
It is also sometimes accorded the first place among the three organs because
until and unless laws are enacted, there can be no implementation and
application of laws.

What is the Executive?

The executive is the organ that implements the laws enacted by the legislature and
enforces the will of the state.

It is the administrative head of the government.

Ministers including the Prime/Chief Ministers and President/Governors form
part of the executive.

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What is the Judiciary?
The judiciary is that branch of the government that interprets the law, settles disputes
and administers justice to all citizens.

The judiciary is considered the watchdog of democracy, and also the guardian of
the Constitution.
It comprises of the Supreme Court, the High Courts, District and other
subordinate courts.
For more on Indian Judiciary, click on the linked article.

What is ‘Separation of Powers’?

In the strictest sense, the doctrine of separation of powers is very rigid.

Background of the concept

This concept was first seen in the works of Aristotle, in the 4th century BCE,
wherein he described the three agencies of the government as General Assembly,
Public Officials and Judiciary.
In the Ancient Roman Republic too, a similar concept was followed.
In modern times, it was 18th-century French philosopher Montesquieu who
made the doctrine a highly systematic and scientific one, in his book De l’esprit
des lois (The Spirit of Laws).
His work is based on an understanding of the English system which was showing
a propensity towards a greater distinction between the three organs of
government.
The idea was developed further by John Locke.

Purpose of the Separation

The purpose of separation of powers is to prevent abuse of power by a single person or

a group of individuals. It will guard the society against the arbitrary, irrational and
tyrannical powers of the state, safeguard freedom for all and allocate each function to
the suitable organs of the state for effective discharge of their respective duties.

Meaning of Separation of Powers

Separation of powers divides the mechanism of governance into three branches i.e.
Legislature, Executive and the Judiciary. Although different authors give different
definitions, in general, we can frame three features of this doctrine.

1. Each organ should have different persons in capacity, i.e., a person with a
function in one organ should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should stick to
their mandate only).
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Thus, these broad spheres are determined, but in a complex country like India there
often arises conflict and transgression by one branch over the other.

Significance of the doctrine

Why do we need a separation of powers between the various organs of the State?
Whenever there is a concentration of power in one centre/authority, there is bound to
be greater chances of maladministration, corruption, nepotism and abuse of power.
This principle ensures that autocracy does not creep into a democratic system. It
protects citizens from arbitrary rule. Hence, the importance of the Separation of
Powers doctrine can be summed up as follows:

1. Keeps away autocracy

2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or unconstitutional laws

Constitutional Status of Separation of Power in India

The doctrine of separation of powers is a part of the basic structure of the Constitution,
although not specifically mentioned. The legislature cannot pass a law violating this
principle. The functions of the three organs are specifically mentioned in the
Constitution.

Let us take a look at some of the articles of the Constitution which suggest separation
of powers.

Article 50: This article puts an obligation over the State to separate the judiciary
from the executive. But, since this falls under the Directive Principles of State Policy, it
is not enforceable.

Article 123: The President, being the executive head of the country, is empowered to
exercise legislative powers (Promulgate ordinances) in certain conditions.

Articles 121 and 211: These provide that the legislatures cannot discuss the conduct
of a judge of the Supreme Court or High Court. They can do so only in case of
impeachment.

Article 361: The President and Governors enjoy immunity from court proceedings.

There is a system of checks and balances wherein the various organs impose checks
on one another by certain provisions.

The judiciary has the power of judicial review over the actions of the executive
and the legislature.

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 The judiciary has the power to strike down any law passed by the legislature if it
is unconstitutional or arbitrary as per Article 13 (if it violates Fundamental
Rights).
It can also declare unconstitutional executive actions as void.
The legislature also reviews the functioning of the executive.
Although the judiciary is independent, the judges are appointed by the executive.
The legislature can also alter the basis of the judgment while adhering to the
constitutional limitation.

Checks and balances ensure that no one organ becomes all-too powerful. The
Constitution guarantees that the discretionary power bestowed on any one organ is
within the democratic principle.

Judicial Pronouncements Upholding Separation of Powers

Doctrine
Kesavananda Bharati Case (1973): In this case, the SC held that the amending
power of the Parliament is subject to the basic features of the Constitution. So, any
amendment violating the basic features will be declared unconstitutional.

Swaran Singh Case (1998): In this case, the SC held the UP Governor’s pardon of a
convict unconstitutional.

Other SC Judgements

The Honourable Supreme Court in Ram Jawaya Kapoor V State of Punjab held
that the Indian Constitution has not indeed recognised the doctrine of separation
of powers in its absolute rigidity but the functions of the different parts or
branches of the government have been sufficiently differentiated and
consequently it can be very well said that our Constitution does not contemplate
assumption by one organ or part of the state of functions that essentially belong
to another.
In Indira Nehru Gandhi V Raj Narain, Ray, CJ observed that in the Indian
Constitution there is a separation of powers in a broad sense only. A rigid
separation of powers as under the American Constitution or under the Australian
Constitution does not apply to India. The Court further held that adjudication of
a specific dispute is a judicial function which Parliament even acting under a
constitutional amending power cannot exercise. Apart from difficulties inherent
in the enforcement of the strict doctrine of separation of powers in the
functioning of the modern government, there is also an inherent difficulty in
defining, in workable terms, the division of powers into executive, legislative and
judicial.

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 In P Kannadasan V State of Tamil Nadu, it was held, “the Constitution has
invested the Constitutional Courts with the power to invalidate laws made by
Parliament and the state legislatures transgressing Constitutional limitations.
Where an Act made by the legislature is invalidated by the Courts on the basis of
legislative incompetence, the legislature cannot enact a law declaring that the
judgement of the Court shall not operate; it cannot overrule or annul the decision
of the Court. But this does not mean that the legislature which is competent to
enact the law cannot re-enact the law. Similarly, it is open to the legislature to
alter the basis of the judgement. The new law or the amended law can be
challenged on other grounds but not on the ground that it seeks to in effectuate
or circumvent the decision of the court. This is what is meant by “checks and
balance” inherent in a system of government incorporating separation of powers.

Constituent Assembly and Separation of Powers

There are chiefly two reasons why the Constituent Assembly did not insert the
separation of powers doctrine explicitly in the Constitution.

1. The founding fathers thought that it was too late to be inserting this principle as
the Constitution was already drafted.
2. Also, India adopted the British parliamentary form of government. So, they
thought it was better to avoid adopting a complete separation of powers doctrine
like the American model.

Relationship between Legislature and Judiciary

Even though the functions of the executive and the judiciary are well-defined in the
Constitution, the system of checks and balances ensures that each one can impose
checks on the other.

The judiciary can strike down laws that it considers unconstitutional or arbitrary.
The legislature, on its part, has protested against judicial activism and tried to
frame laws to circumvent certain judgements.
Judicial activism is said to be against the principle of separation of powers.
There have been instances where the courts have issued laws and policies
through judgements. For example, the Vishakha Guidelines where the SC issued
guidelines on sexual harassment.
In 2010, the SC directed the government to undertake the distribution of food
grains.
If the judiciary oversteps its mandate and crosses over into the territory of the
legislature or the executive, it is called judicial overreach.

Judicial Supremacy and Parliamentary Sovereignty

To strike a balance between the judiciary and the legislature, the Indian constitution
uses the following principles:
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 The doctrine of Parliamentary Sovereignty has been adapted from the British
Constitution.
The doctrine of Judicial Supremacy has been adapted from the American
Constitution.
The power of judicial review of the Supreme Court of India is narrower in scope
than the Supreme Court of the USA.
The Constitution of India guarantees ‘established procedure by law’ in Article 21
instead of the ‘due process of law’ provided in the American Constitution.
The Indian Constitution has opted for an amalgamation of Britain’s principle of
parliamentary sovereignty and the judicial supremacy of the USA.
The Supreme Court, on the one hand, can declare the parliamentary enactments
as unconstitutional using the power of judicial review.
The Parliament, on the other hand, can amend a large chunk of the Constitution
using its constituent power.

Relationship between Legislature and Executive

The Constitution states that the executive branch of the State (Council of Ministers)
shall be collectively responsible to the Legislature (Lok Sabha). This implies that the
Parliament should supervise the work of the government and hold it accountable for
its actions.

In a parliamentary form of government, the executive is not separated from the

legislature in that the members of the council of ministers are members of the
legislature.
The executive loses power when it loses the confidence of the legislature. The
executive/council of ministers is dismissed if it loses the legislature’s confidence
before its tenure is over. So, the legislature controls the executive through a vote
of no-confidence.
The head of government and head of state are different. The head of the
government is the Prime Minister while the head of state is the President.
The parliament makes laws in general broad terms and delegates the powers to
the executive to formulate detailed policy and implement them.
In a presidential form of government, the executive is not accountable to the
legislature. One person is the heads of both the State as well as the government.
A minister need not be from the legislature.

Relationship between Executive and Judiciary

There are several provisions in the Constitution that make the judiciary independent.
This is because, it is believed that for a democracy to remain efficient and effective, the
judiciary must be independent. The judiciary is said to be the guardian of the
constitution. If the executive also assumes judicial powers, that sort of a government
tends to become oppressive.

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However, there are some judicial functions which are performed by the executive as
well. They are:

1. The appointments of the judges are made by the executive.

2. The President and the Governors also enjoy the power to pardon, reprieve, etc.
These are direct judicial functions.
3. Under the system of administrative adjudication, the executive agencies have the
power to hear and decide cases involving particular fields of administrative
activity.

The judiciary also performs some executive functions. It can review the actions of the
executive and declare them void if found unconstitutional.

Checks and Balances

The strict separation of powers that was envisaged in the classical sense is not
practicable anymore, but the logic behind this doctrine is still valid. The logic behind
this doctrine is of polarity rather than strict classification meaning thereby that the
centre of authority must be dispersed to avoid absolutism. Hence, the doctrine can be
better appreciated as a doctrine of checks and balances.

In Indira Nehru Gandhi’s case, Chandrachud J. observed – No Constitution can

survive without a conscious adherence to its fine checks and balances. Just as
courts ought not to enter into problems intertwined in the political thicket,
Parliament must also respect the preserve of the courts. The principle of
separation of powers is a principle of restraint which “has in it the precept,
inmate in the prudence of self-preservation; that discretion is the better part of
valour”.
The doctrine of separation of powers in today’s context of liberalization,
privatization and globalization cannot be interpreted to mean either “separation
of powers” or “checks and balance” or “principles of restraint”, but “community
of powers” exercised in the spirit of cooperation by various organs of the state in
the best interest of the people.

Judicial Overreach

The Supreme Court has been accused time and again of pronouncing judgements that
are often termed as judicial legislation. This happens when in the guise of giving
guidelines and creating principles, they assume the powers of the legislature, for
instance, by laying down the basic structure doctrine, the Supreme Court has put
limitations on the legislature’s power to make and amend laws. The judiciary through
the collegiums system has also been accused of infringing on powers of other
branches. The essential function of the judiciary is to interpret the law rather than to
be keen in the appointment of judges. After all, ours is a parliamentary form of
democracy wherein parliamentarians are elected by people and they have to face the

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people, they are filling the slogan of “We the People”; as compared to this, judges are
enjoying fixed tenure. They are accountable to none as such and they should
concentrate on justice delivery rather than the appointments.

What is the separation of powers in the Constitution?

It is a doctrine in which the three organs of the government, the executive, the
legislature and the judiciary have separate functions and powers, and one organ does
not interfere in the functioning of the others.

What do you mean by checks and balances in the Indian Constitution?

It is a system by which no organ of the government abuses its own power. Checks and
balances ensure that one organ does not become all too powerful.

Who introduced the separation of powers?

18th-century French political philosopher Charles-Louis de Secondat, Baron de
Montesquieu propounded the doctrine in a scientific and systematic manner, although
the principle was used even in ancient times.

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