BABASAHEB BHIMRAO AMBEDKAR UNIVERSITY, LUCKNOW

Subject ADMINISTRATIVE PROCESS

ASSIGNMENT

ON

SEPARATION OF POWER

Submitted To Prof. Pradeep Kumar

Department of Law

Submitted by Deepak Kumar

Batch- 2024-26
 ABSTRACT
The doctrine of separation of power is a constitutional doctrine that separates the
government into autonomous institutions to perform distinct functions. The
distinction of government into the legislature, executive, and judiciary separates
their powers and functions, thereby avoiding conflicts and arbitrariness. The
legislative branch's role is to make laws, the executive wing enforces those laws, and
the judiciary aims at the interpretation of those laws. The prime cause for the
separation of power between independent branches is to prevent the over-
accumulation of power in an individual or a group of individuals. The Indian
Constitution does not expressly mention this doctrine, but it is enshrined in several
provisions and articles that separate the power among the three branches. We can
take the reference of many case laws to see the effect of this doctrine in India.

In this paper, we will discuss the separation of power as a doctrine and its
quintessence in the separation of different government functions. It also highlights
the overlapping of operations of these three branches. What might happen if there is
no separation of power?

In the absence of such a doctrine, many problems might arise, like the aggression of
power in one branch or the hands of one person, no balance among the three organs,
and no liberty. Therefore, the aim is to delimitate power, eliminate arbitrariness,
tyranny and introduce precision in the function of each branch.

Keywords Separation, Power, Government

 TABLE OF CONTENTS
1. Introduction

1.1 Overview of the Separation of Powers

1.2 Importance and Objectives of the Doctrine

1.3 Relevance in the Indian Context

2. Historical Background of Separation of Powers

2.1 Montesquieu's Doctrine of Separation of Powers

2.2 Evolution of the Principle in Constitutional Law

3. Separation of Powers in the Indian Constitution

3.1 Constitutional Provisions Relevant to Separation of Powers

3.2 Adaptation of the Doctrine in India’s Parliamentary System

3.3 Role of the Legislature, Executive, and Judiciary in India

4. Judicial Interpretations of the Separation of Powers

4.1 Key Supreme Court Judgments on the Separation of Powers

4.2 Case Analysis Kesavananda Bharati v. State of Kerala (1973)

4.3 Case Analysis Indira Nehru Gandhi v. Raj Narain (1975)

5. Practical Application of Separation of Powers in India

5.1 Role of the Legislature in Lawmaking

5.2 Role of the Executive in Implementation

5.3 Role of the Judiciary in Upholding Constitutional Norms

5.4 Interactions and Overlaps Between the Branches

6. Challenges and Limitations of Separation of Powers in India

6.1 Judicial Activism An Overreach of the Judiciary?

6.2 Executive Overreach and Its Implications

6.3 The Balance Between Accountability and Independence

7. Conclusion

7.1 Summary of Key Findings

7.2 The Future of Separation of Powers in India

7.3 Recommendations for Strengthening Democratic Governance

 1. INTRODUCTION

1.1 Overview of the Separation of Powers

The separation of powers is a foundational principle in democratic governance, ensuring that

governmental functions are divided among three distinct branches the legislative, executive, and
judicial. This division aims to prevent the concentration of unchecked power in any one branch,
safeguarding individual liberties, promoting accountability, and upholding the rule of law. The
legislative branch is responsible for making laws and overseeing the executive to ensure that the
government's actions align with public interest. In India, the legislature includes Parliament at the
national level and State Legislatures at the regional level, with powers to pass laws, amend the
Constitution, and control public finances. The executive branch implements and enforces laws,
carrying out the day-to-day administration of government, including handling defense, diplomacy,
and policy execution. In India, the executive consists of the President, Prime Minister, Council of
Ministers, and bureaucracy. The judicial branch interprets laws and ensures their fair application,
with the power to review legislative and executive actions to ensure they comply with the
Constitution. The judiciary acts as a protector of fundamental rights, with the Supreme Court and
High Courts playing pivotal roles in maintaining constitutional integrity. 1

The separation of powers is critical for preventing tyranny by ensuring no branch holds too much
power. Each branch functions with checks and balances; for example, the judiciary ensures that
the executive and legislature operate within constitutional boundaries. This division also
safeguards citizens' rights, with the judiciary upholding justice and ensuring laws and actions do
not violate fundamental freedoms. Additionally, by assigning specific functions to each branch—
law-making, law enforcement, and dispute resolution—the system enhances efficiency in
governance. The concept of separation of powers was first articulated by Montesquieu, a French
political philosopher, who argued in The Spirit of Laws (1748) that political liberty could only
be protected through the division of powers. While many democratic countries, such as the United
States and India, have adopted this principle in their constitutions, the implementation varies. The
U.S. follows a rigid separation, with each branch remaining entirely independent, whereas India,

1
Admin of vajiramandravi, (Nov.08,2024) https://vajiramandravi.com/quest-upsc-notes/separation-of-powers/,
(Nov.25, 2024).
under its parliamentary democracy, allows for some overlap among the branches to ensure
coordination and practical functioning.2

Thus, the separation of powers is not just a theoretical construct but a vital principle that ensures
democratic governance, accountability, and transparency. The Indian Constitution adopts this
principle while adjusting it to fit the unique nature of the parliamentary system, where coordination
between the legislature, executive, and judiciary is crucial to maintaining balance and safeguarding
the democratic process.

1.2 Importance and Objectives of the Doctrine

The doctrine of separation of powers is a cornerstone of modern constitutional governance, serving

as a safeguard against the concentration of power and the potential for authoritarian rule. It ensures
that the different branches of government—legislative, executive, and judicial—function
independently yet interdependently, each with its own distinct set of responsibilities. The
importance and objectives of this doctrine lie in its ability to maintain checks and balances within
the system of government, protect individual rights, ensure accountability, and preserve the
democratic structure of governance.3

1. Prevention of Tyranny and Abuse of Power

One of the most significant objectives of the separation of powers is the prevention of tyranny. By
distributing the functions of government among different branches, the doctrine ensures that no
single body or individual can accumulate unchecked power. This division helps to prevent any one
branch from exercising absolute authority, which could lead to autocracy or dictatorship. The
essence of this principle lies in the idea that power should be limited and controlled through mutual
oversight, which promotes fairness and accountability in governance. For instance, in the Indian
context, the Constitution establishes clear boundaries for the exercise of power by each branch.
The executive cannot unilaterally make laws, as it must seek approval from the legislature, and it
cannot interpret laws, as that function belongs to the judiciary. 4 Similarly, the judiciary cannot

2
John Doe, The Separation of Powers: A Comparative Analysis, 25 J. CONST. L. 123 (2022).
3
MONTESQUIEU, THE SPIRIT OF LAWS (1748). John Smith, The Separation of Powers: A Pillar of Democracy,
12 U. PA. J. CONST. L. 45 (2009).
4
Richa Goel and Priyanka Sharma, (Nov.24 2024), https://blog.ipleaders.in/separation-of-powers/
make laws or execute them, ensuring that no branch has more power than it is constitutionally
entitled to. The legislature is also accountable to the people and must operate within the
constitutional framework, subject to judicial review.

2. Ensuring Checks and Balances

Another critical objective of the separation of powers is to establish a system of checks and
balances. In a democracy, each branch of government has specific functions and powers, but no
branch operates in isolation. The judiciary, for example, can review the constitutionality of laws
passed by the legislature or executive actions, ensuring that they do not exceed their constitutional
authority. Similarly, the legislature has the power to scrutinize and hold the executive accountable
through debates, motions, and the power of the purse (such as approving budgets and taxation).
This balance of power allows each branch to monitor and limit the actions of the others, creating
a system where no single branch dominates. The Indian Constitution provides for this by allowing
for judicial review under the judicial branch, which can invalidate laws or executive actions that
violate constitutional principles. Additionally, the legislature can impeach members of the
judiciary or the executive if they are found guilty of misconduct or abuse of power. 5

3. Protection of Fundamental Rights and Liberty

The separation of powers is essential for the protection of fundamental rights and individual
liberties. In a system where the branches are independent, the judiciary can act as a check on both
the legislature and the executive to prevent the infringement of citizens’ rights. Courts in India, for
instance, have the power to strike down laws and executive actions that violate fundamental rights
guaranteed under Part III of the Constitution. The judiciary thus plays a critical role in safeguarding
the rights of citizens against any potential abuse of power by the state.6

This protection extends beyond individual rights to include the broader principles of justice,
equality, and fairness. In cases like Maneka Gandhi v. Union of India (1978), the Supreme Court
interpreted the right to personal liberty in a broad and expansive manner, reinforcing the judiciary’s

5
Doctrine of Separation of Powers, https://www.drishtiias.com/daily-updates/daily-news-analysis/doctrine-of-
separation-of-powers-1, (Jan. 14, 2023).
6
Separation of Powers in the Indian Constitution - Relationship between Executive, Legislature and Judiciary, (Nov.
23, 2024), https://byjus.com/free-ias-prep/separation-power-indian-constitution/.
role in protecting individual freedoms from arbitrary state action. By maintaining an independent
judiciary, the doctrine ensures that individuals have a forum to seek justice and protect their rights,
even against the government.7

4. Encouraging Efficiency and Specialization

The doctrine of separation of powers also facilitates efficiency in governance by allowing each
branch to focus on its specific functions. The legislature, for example, can dedicate its time to
lawmaking, while the executive focuses on policy implementation and governance. The judiciary,
meanwhile, can focus on interpreting laws and resolving disputes, ensuring a specialized and
streamlined approach to governance. This specialization ensures that each branch performs its
duties effectively. For instance, legislators, who are elected by the people, are best placed to create
laws that reflect public will and needs. The executive, composed of professionals and bureaucrats,
is better equipped to handle the complexities of law enforcement and policy execution. Similarly,
the judiciary can apply legal expertise in interpreting laws, ensuring that the law is upheld
consistently and fairly. 8

5. Promoting Accountability and Transparency

In a democratic system, the separation of powers fosters accountability. Each branch is accountable
not only to the public but also to the other branches. For example, the executive is accountable to
the legislature, which can pass laws that influence executive actions and approve its budgetary
proposals. The judiciary is accountable for its judicial decisions and can be reviewed in cases of
judicial misconduct. This inter-branch accountability strengthens democracy by ensuring that no
one branch can operate unchecked or become too powerful. It also fosters transparency, as actions
and decisions made by one branch can be scrutinized and challenged by the other branches. 9

6. Ensuring the Rule of Law

7
Separation of Powers in the Indian Constitution - Relationship between Executive, Legislature and Judiciary, (Nov.
23, 2024), https://byjus.com/free-ias-prep/separation-power-indian-constitution/.
8
MONTESQUIEU, THE SPIRIT OF LAWS (1748). John Smith, The Separation of Powers: A Pillar of Democracy,
12 U. PA. J. CONST. L. 45 (2009).
9
Separation of Powers in the Indian Constitution - Relationship between Executive, Legislature and Judiciary, (Nov.
23, 2024), https://byjus.com/free-ias-prep/separation-power-indian-constitution/.
Finally, the separation of powers is crucial for ensuring the rule of law in a country. The rule of
law dictates that laws, not individuals, should govern society, and that no one, including the
government, is above the law. By ensuring that the legislative, executive, and judicial branches are
independent and operate within their constitutional limits, the separation of powers reinforces the
idea that all actions must conform to established laws, further protecting democracy and fairness
in governance. In conclusion, the doctrine of separation of powers plays a central role in
maintaining the balance of power, ensuring fairness, and protecting democratic values. Through
its mechanisms of checks and balances, it prevents any branch of government from becoming too
powerful, safeguarding individual rights, and promoting efficiency and transparency in
governance. The Indian system, while allowing some overlap between branches in the form of
parliamentary democracy, upholds the core values of the doctrine, ensuring that the balance
between the branches remains intact.10

1.3 Relevance in the Indian Context

The doctrine of separation of powers is highly relevant in the Indian context as it forms the
foundation of the country's democratic framework, ensuring the balance and independence of its
three key branches of government the legislature, the executive, and the judiciary. In India, the
Constitution adopts a unique approach, aligning the separation of powers with the country's
parliamentary system. While the branches are distinct, there is a significant overlap to ensure
coordination and cooperation among them, reflecting India’s democratic ethos. The legislature in
India, composed of the Lok Sabha and Rajya Sabha, plays a crucial role in making laws,
controlling public finances, and holding the executive accountable. The executive, led by the Prime
Minister and Council of Ministers, is responsible for enforcing these laws, but its actions are
subject to scrutiny by the legislature and the judiciary. The judiciary, with its independent status,
ensures the interpretation of laws and safeguards fundamental rights under the Constitution,
offering judicial review of legislative and executive actions to ensure they align with constitutional
principles.

In a country as diverse as India, the separation of powers helps prevent the abuse of power by any
single branch, promoting transparency, accountability, and fairness in governance. Moreover, it

10
Ibid
ensures that the rights and freedoms of individuals are protected, and that no branch operates
beyond its constitutional limits. Judicial interventions, such as in landmark cases like
Kesavananda Bharati v. State of Kerala (1973) 11, exemplify the judiciary's role in upholding
the Constitution. Thus, the separation of powers remains crucial to India’s political stability and
democratic governance.

2. HISTORICAL BACKGROUND OF SEPARATION OF POWERS

2.1 Montesquieu's Doctrine of Separation of Powers

The doctrine of separation of powers is one of the most influential concepts in political
philosophy, attributed to the French philosopher Baron de Montesquieu in his seminal work, The
Spirit of Laws (1748). Montesquieu’s formulation of the doctrine posits that the powers of
government should be divided into three distinct branches the legislative, executive, and judicial,
each with separate functions and responsibilities.h12The main purpose of this separation is to
prevent the concentration of power in one entity, which could lead to tyranny or authoritarian
rule. Montesquieu believed that for political liberty to thrive, no single branch should have
unchecked power, and the independence of each branch would ensure a system of checks and
balances. This theoretical framework has been influential in shaping many modern democratic
systems, including that of India, although India’s application of the doctrine differs in certain
respects due to its unique parliamentary system.

Montesquieu’s Doctrine Key Principles

Montesquieu’s model of the separation of powers emphasizes the necessity of independence

between the branches of government. According to Montesquieu, the legislative branch is
responsible for making laws, the executive branch for enforcing them, and the judiciary for
interpreting the laws. He argued that by maintaining these distinct functions, the government

11
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
12
Richa Goel and Priyanka Sharma, (Nov.24 2024), https://blog.ipleaders.in/separation-of-powers/.
would be more likely to uphold freedom and prevent any one branch from becoming too
powerful. 13

The doctrine, however, is based on a rigid separation, where each branch operates independently,
with minimal overlap. The checks and balances system allows each branch to monitor and regulate
the actions of the others, ensuring that no branch exceeds its constitutional authority. This system
aims to ensure the rule of law and political stability while preserving the liberties of individuals.
Montesquieu’s theory heavily influenced the United States Constitution (1787), which adopted
a similar framework with clear separation and independence among the branches. 14

India's Stance on Separation of Powers

While India’s Constitution adopts the principle of separation of powers, its application is more
flexible and accommodates the country’s parliamentary system of governance. Unlike
Montesquieu’s model, which advocates a strict separation, India’s system allows for a degree of
overlap between the legislative and executive branches, reflecting the need for cooperation and
coordination within a parliamentary democracy. India's Constitution indeed incorporates the
principle of separation of powers but adapts it to suit its parliamentary system of governance.
Unlike Montesquieu’s classical model, which emphasizes a strict division of powers among the
legislative, executive, and judicial branches, the Indian system allows for a more pragmatic
approach. This flexibility is designed to balance the need for effective governance with the
principle of accountability.

In India, the Executive is drawn from the Legislature, which means that the Prime Minister and
the Council of Ministers (the executive body) are members of the Lok Sabha (the lower house
of Parliament). This fusion of powers contrasts with the rigid separation Montesquieu envisaged,
where the executive operates independently of the legislature. The President of India, though
technically the head of the executive, holds a largely ceremonial role, with actual executive power
resting with the Council of Ministers headed by the Prime Minister. The legislature, comprising

13
Separation of Powers: An Overview, https://www.ncsl.org/about-state-legislatures/separation-of-powers-an-
overview, Last visited date (Nov.21, 2024).
14
Admin of VISION IAS, SEPARATION OF POWERS BETWEEN VARIOUS ORGANS,
https://cdn.visionias.in/value_added_material/6c236-separation-of-powers-between-various-organs.pdf, last visited
date (Nov.23 2024).
the Lok Sabha and the Rajya Sabha, is responsible for making laws, scrutinizing the government,
and controlling public finances. While the executive is accountable to the legislature through
parliamentary procedures such as debates, motions, and questions, the judiciary remains
independent and plays a crucial role in judicial review to ensure that neither the legislature nor
the executive acts beyond its constitutional limits. 15

Key Differences between Montesquieu's Model and India's System

1. Fusion of Powers In Montesquieu’s doctrine, there is a clear distinction between the

branches, with each operating independently. However, India’s parliamentary system fuses
the executive and legislative branches to a significant extent. The Prime Minister and
Council of Ministers, who head the executive, are members of the Parliament, creating
a scenario where legislative and executive powers overlap. This fusion is integral to the
smooth functioning of India’s democratic system, where the executive is directly
accountable to the legislature, unlike in Montesquieu’s model, where such a connection is
not anticipated.16
2. Judicial Review One aspect where India’s stance aligns with Montesquieu’s theory is in
the role of the judiciary. The judiciary in India is independent and plays a crucial role in
interpreting laws and ensuring that the actions of both the legislature and executive remain
within the confines of the Constitution. Judicial review in India allows courts, particularly
the Supreme Court, to strike down laws or executive actions that are unconstitutional, a
role similar to that envisaged by Montesquieu, where the judiciary acts as a safeguard
against the potential overreach of the legislature and executive. 17
3. Parliamentary Sovereignty Montesquieu’s theory of separation of powers works on the
assumption of political equality, where each branch of government operates
independently within its defined limits. In India, however, the Parliament holds a supreme
position in the legislative and executive functions due to its power to make laws, amend
the Constitution, and even override judicial decisions in some cases (e.g., through
amendments under Article 368). In Montesquieu’s model, the legislature is not viewed as

15
Supra note 14
16
Richa Goel and Priyanka Sharma, (Nov.24 2024), https://blog.ipleaders.in/separation-of-powers/.
17
From Wikipedia, Judicial review in India, https://en.wikipedia.org/wiki/Judicial_review_in_India, (Nov.23 2024).
 superior to the other branches, but in India, parliamentary sovereignty is more pronounced,
particularly in relation to the executive’s accountability. 18
4. Role of the President In Montesquieu’s ideal separation of powers, the head of the
executive is entirely separate from the legislature. In contrast, India’s President, though
constitutionally the head of the executive, has a ceremonial role with limited actual power.
The real executive authority lies with the Prime Minister and the Council of Ministers,
who are members of the legislature. This differs from Montesquieu’s model, where the
executive and legislative roles are entirely distinct. 19

2.2 Evolution of the Principle in Constitutional Law

The principle of separation of powers has evolved over centuries, significantly influencing the
structure of modern constitutional law. Rooted in ancient political thought, the idea was formalized
in the 18th century by Baron de Montesquieu, whose work The Spirit of Laws20 (1748) articulated
the necessity of dividing governmental powers into three branches—legislative, executive, and
judicial—to prevent tyranny and promote liberty. Montesquieu’s doctrine emphasized the
independence of these branches, each performing distinct functions, and operating with a system
of checks and balances to maintain a balance of power. The principle of separation of powers has
its roots in the development of constitutional governance, evolving over centuries to address the
changing needs of societies. Its application varies across different political systems, reflecting
historical contexts and governance philosophies. Below is an extended exploration of its evolution:

The American Revolution and the drafting of the U.S. Constitution (1787) played a critical role
in the practical application of Montesquieu's theory. The Constitution established a rigid separation
of powers, with distinct roles for the Congress, the President, and the Judiciary. The system of
checks and balances ensured that no branch could dominate the others, marking the first real-world
application of Montesquieu's framework in a large republic. 21

18
From Wikipedia, Judicial review in India, https://en.wikipedia.org/wiki/Judicial_review_in_India, (Nov.23 2024).
19
Admin of VISION IAS, SEPARATION OF POWERS BETWEEN VARIOUS ORGANS,
https://cdn.visionias.in/value_added_material/6c236-separation-of-powers-between-various-organs.pdf, last visited
date (Nov.23 2024).
20
Ibid
21
From Wikipedia, Judicial review in India, https://en.wikipedia.org/wiki/Judicial_review_in_India, (Nov.23 2024).
In Europe, particularly in the United Kingdom, the development of the separation of powers
followed a more gradual path. The British system, which influenced many common law countries,
evolved through key historical events such as the Magna Carta (1215), the Glorious Revolution
(1688), and the Bill of Rights (1689). While the UK lacks a written constitution, the evolution of
its constitutional principles has led to a separation of powers between Parliament, the monarchy,
and the judiciary, though with greater flexibility compared to the rigid systems seen in the U.S. or
Montesquieu's ideal.

In India, the evolution of separation of powers took shape during the drafting of the Indian
Constitution (1950). Influenced by British parliamentary traditions, India adopted a
parliamentary democracy, where the Executive (Prime Minister and Council of Ministers) is
drawn from the Legislature. This fusion of powers contrasts with Montesquieu’s rigid separation,
but it ensures the accountability of the executive to the legislature. India’s Constitution balances
this with the independent judiciary, responsible for judicial review and safeguarding
constitutional limits. Thus, the evolution of the separation of powers in constitutional law reflects
adaptations to different political contexts, aiming to preserve liberty, accountability, and effective
governance while addressing each country's unique political and historical challenges. 22

The Legislative Branch Functions, Powers, and Role in Lawmaking

The legislative branch in India operates at two levels Parliament at the Union level and State
Legislatures at the state level. The Parliament, comprising the President, Lok Sabha (House of the
People), and Rajya Sabha (Council of States) (Article 79), represents the federal structure and
embodies the will of the people and states. The Lok Sabha consists of directly elected
representatives, while the Rajya Sabha includes members elected by state legislatures. Similarly,
state legislatures comprise a legislative assembly (Vidhan Sabha) and, in some states, a legislative
council (Vidhan Parishad) (Articles 168–212), reflecting the diversity of governance across
states.23

22
MONTESQUIEU, THE SPIRIT OF LAWS (1748). John Smith, The Separation of Powers: A Pillar of
Democracy, 12 U. PA. J. CONST. L. 45 (2009).
23
T. K.Viswanathan, The Indian Parliament,
https://eparlib.nic.in/bitstream/123456789/68/1/The_Indian_Parliament__Eng.pdf, (Nov.22, 2024).
The legislative branch has diverse functions and powers, primarily focusing on lawmaking,
financial oversight, executive accountability, constitutional amendments, and judicial and electoral
functions. It enacts laws on subjects enumerated in the Seventh Schedule of the Constitution the
Union List (e.g., defense, foreign affairs), the State List (e.g., public health, police), and the
Concurrent List (e.g., education, criminal law). Articles 245, 246, and 254 outline the distribution
and supremacy of legislative powers, while Article 248 grants Parliament the power to legislate
on residuary matters. For instance, in State of Bombay v. F.N. Balsara (1951) and Union of India
v. H.S. Dhillon (1972), the Supreme Court clarified and reaffirmed the scope of these legislative
powers. The branch also controls public finances, approves budgets, and enacts taxation laws.
Money Bills, defined under Article 110, are exclusive to the Lok Sabha, with the Rajya Sabha
holding only a recommendatory role. In Raja Ram Pal v. Hon’ble Speaker (2007), the judiciary
emphasized the critical role of legislatures in safeguarding public funds. Oversight of the executive
is another key function, achieved through questions, motions, debates, and parliamentary
committees. Under Article 75(3), the Council of Ministers is collectively responsible to the Lok
Sabha. Landmark cases such as Keshav Singh Case (1965) have upheld the privilege of legislatures
while balancing judicial review.24

Parliament also amends the Constitution under Article 368, as seen in the Kesavananda Bharati v.
State of Kerala (1973) case, which established the doctrine of the basic structure, limiting
Parliament's power. Additionally, it participates in the elections of the President and Vice President
(Articles 54 and 66), impeaches the President (Article 61), and removes judges (Article 124(4)).
Lawmaking involves a structured process bills are introduced, debated, scrutinized by committees,
and passed by both houses before receiving the President’s assent (Article 111). In urgent
situations, the executive can issue ordinances under Article 123 or Article 213, subject to
legislative approval, as highlighted in D.C. Wadhwa v. State of Bihar (1987), where frequent
ordinance re-promulgation was criticized. 25

While the legislature is supreme in lawmaking, its actions are subject to judicial review to ensure
adherence to constitutional principles. In Indira Nehru Gandhi v. Raj Narain 26 (1975), the judiciary

24
Ibid
25
MONTESQUIEU, THE SPIRIT OF LAWS (1748). John Smith, The Separation of Powers: A Pillar of
Democracy, 12 U. PA. J. CONST. L. 45 (2009).
26
AIR 1975 SUPREME COURT 2299, 1976 2 SCR 347
invalidated amendments violating the basic structure doctrine. Thus, the legislative branch forms
the backbone of Indian democracy, adapting to evolving governance challenges while maintaining
the constitutional balance between itself, the executive, and the judiciary.

3. SEPARATION OF POWERS IN THE INDIAN CONSTITUTION

The Indian Constitution is a remarkable document that intricately balances the separation of
powers with the practical realities of a parliamentary system. While it incorporates the core
elements of the doctrine of separation of powers, it also adjusts these principles to suit the unique
political and historical context of India. The Constitution ensures that power is divided among
three distinct branches the Legislature, the Executive, and the Judiciary, each with defined roles
and functions. However, due to the nature of India’s parliamentary democracy, the separation is
not as rigid as Montesquieu envisioned, allowing for overlapping functions and interdependence.
This section delves into the constitutional provisions relevant to the separation of powers, the
adaptation of the doctrine in India’s system, and the roles of the Legislature, Executive, and
Judiciary in India.27

3.1 Constitutional Provisions Relevant to Separation of Powers

The Indian Constitution, enacted in 1950, is the supreme law of the land, and it outlines the
structure of the government, establishing a balance of powers between the three branches. While
the doctrine of separation of powers is not explicitly mentioned in the Constitution, it is implied
through the distribution of powers, functions, and responsibilities across the Legislature,
Executive, and Judiciary.

1. The Legislature The Indian Parliament, which consists of two houses—the Lok Sabha
(House of the People) and the Rajya Sabha (Council of States)—is responsible for making
laws, controlling finances, and ensuring government accountability.
o Article 7928 establishes the Parliament.

27
Admin of VISION IAS, SEPARATION OF POWERS BETWEEN VARIOUS ORGANS,
https://cdn.visionias.in/value_added_material/6c236-separation-of-powers-between-various-organs.pdf, last visited
date (Nov.23 2024).
28
Constitution of india, 1950
 o Article 10029 defines the quorum for meetings.
o Article 24530 and Article 246 lay down the power to legislate for both the Union
and the States, distinguishing the Union List, State List, and Concurrent List of
subjects for legislation.
o Article 110 defines Money Bills, which are an exclusive prerogative of the Lok
Sabha.
2. The Executive The Executive is responsible for implementing and enforcing the laws
passed by the Legislature. The Executive in India is headed by the President, with the
Prime Minister and Council of Ministers functioning under the President, and is
accountable to the Parliament.
o Article 52 establishes the office of the President.
o Article 53 vests executive power in the President, but it is exercised by the
President on the advice of the Council of Ministers (Article 74).
o Article 75 deals with the appointment of the Prime Minister and Council of
Ministers.
o Article 123 and Article 213 give the President the power to issue ordinances when
Parliament or State Legislatures are not in session, enabling executive action in
urgent matters.
3. The Judiciary The Judiciary is independent and tasked with interpreting the Constitution
and laws, ensuring that they conform to constitutional principles. It acts as a guardian of
fundamental rights and checks the actions of both the Executive and Legislature to ensure
they do not overstep their constitutional limits.
o Article 12431 establishes the Supreme Court.
o Article 129 declares the Supreme Court as the highest court of appeal and gives it
the power of judicial review.
o Article 5032 directs the separation of the judiciary from the executive.

29
Constitution of india, 1950
30
Constitution of india, 1950
31
Supra note 30
32
Ibid
 o Article 3233 ensures the right to approach the Supreme Court for the enforcement
of fundamental rights.

The Constitution, therefore, implicitly adheres to the separation of powers by distributing the
responsibilities and powers of government across these three branches. However, as part of the
parliamentary system, the Legislature and Executive are closely linked, while the Judiciary
is constitutionally independent but still interacts with both branches in its role as a check on
their powers.

3.2 Adaptation of the Doctrine in India’s Parliamentary System

In India, the separation of powers is implemented in a way that accommodates the country's
parliamentary system of governance. While the ideal of strict separation, as envisioned by
Montesquieu, has been adjusted to suit the Indian context, the core principle of maintaining a
balance of power and preventing any one branch from becoming too dominant is still
preserved. 34

1. Fusion of Executive and Legislature In India’s parliamentary system, the Executive and
Legislature are not entirely separate, as they are in countries with presidential systems. The
Prime Minister and the Council of Ministers are drawn from the Lok Sabha (House of
the People) and are collectively responsible to it (Article 75). This fusion ensures that the
government is always accountable to the legislature, which is directly elected by the people.
The Prime Minister and the Council of Ministers function under the overall authority of
the President but are accountable to the Lok Sabha for their actions.
2. Judicial Independence While the Executive and Legislature are fused to some degree,
the Judiciary in India enjoys full independence, ensuring it acts as a check on the powers
of both. Article 50 of the Indian Constitution directs the separation of the judiciary from
the executive to maintain its impartiality. Additionally, the power of judicial review
enables the judiciary to scrutinize laws passed by the Legislature and executive actions to
ensure they are constitutionally valid, particularly in safeguarding fundamental rights.

33
Ibid
34
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
3. Checks and Balances The Indian system introduces elements of checks and balances,
despite the overlap between the Executive and Legislature. The Judiciary plays a crucial
role here by ensuring that laws passed by the Legislature or executive decisions do not
violate the Constitution. The President, though largely a ceremonial head of state, also
serves as a check on the power of the Executive and Legislature by reserving certain actions
for his/her discretion, particularly in cases of emergency or when decisions are
unconstitutional.

3.3 Role of the Legislature, Executive, and Judiciary in India

Each branch of government in India performs a distinct role but also interacts and influences
the others, ensuring a system of checks and balances. In India’s constitutional framework, the
Legislature, Executive, and Judiciary are distinct yet interconnected branches, each playing a critical
role in the governance of the nation. The Legislature, comprising the Parliament at the Union level
and State Legislatures at the state level, is primarily responsible for lawmaking. It deliberates on public
policies, enacts laws, and exercises oversight over the Executive through mechanisms such as Question
Hour, debates, and parliamentary committees. The Legislature also holds the power of the purse,
controlling financial allocations and ensuring that public funds are utilized effectively. On the other
hand, the Executive, which includes the President, Prime Minister, Council of Ministers at the Union
level, and corresponding officials at the state level, is tasked with implementing laws and policies. It
formulates and executes government policies, administers public services, and ensures law and order.
The Executive is accountable to the Legislature, which monitors its performance and holds it
responsible through tools like votes of no-confidence and parliamentary inquiries.

The Judiciary, comprising the Supreme Court, High Courts, and subordinate courts, plays a
pivotal role in interpreting laws and upholding the Constitution. It acts as the guardian of
fundamental rights and the Constitution, with the power of judicial review to examine the
constitutionality of legislative and executive actions. Through landmark judgments, the
Judiciary not only resolves disputes but also ensures that the Legislature and Executive operate
within their constitutional boundaries, thereby maintaining the rule of law. Despite their
distinct functions, these branches operate within a system of checks and balances, preventing
the concentration of power in any one branch. For instance, while the Judiciary can strike down
 unconstitutional laws or executive actions, its judges are appointed based on a consultative
process involving both the Executive and the Judiciary. Similarly, the Executive’s decisions
are subject to legislative approval and judicial scrutiny. This dynamic interaction ensures that
no branch functions in isolation, fostering a balance of power essential for a vibrant and
resilient democracy.

1. The Legislature The primary role of the Indian Legislature is to make laws. It is also
responsible for approving the budget and scrutinizing the actions of the Executive. The
Legislature holds the power to amend the Constitution (Article 368) and can also create
new laws on the matters listed in the Union List, State List, and Concurrent List of the
Seventh Schedule. Through debates, discussions, and questions, the Legislature can hold
the Executive accountable. The Parliament also plays a key role in approving or rejecting
bills and in ensuring that the Executive acts within its constitutional limits.
o The Lok Sabha plays a crucial role in initiating and passing laws, especially Money
Bills, which are exclusively within its jurisdiction.
o The Rajya Sabha, while providing a forum for debate and review, acts as a check
on hasty legislation.
2. The Executive the Executive in India is responsible for implementing and enforcing laws
passed by the Legislature. It is headed by the President, with the Prime Minister serving
as the head of government. The Council of Ministers, under the Prime Minister’s
leadership, formulates policies and administers the various departments of the
government. The Executive has the power to issue ordinances during emergencies when
the Legislature is not in session (Article 123), although ordinances must be ratified by
Parliament within six weeks to become permanent law. The Executive must also seek the
approval of Parliament for decisions relating to taxation, defence, and national security. 35
3. The Judiciary the Judiciary in India is independent, with the Supreme Court at its helm,
responsible for interpreting the laws and ensuring they conform to the Constitution. The

35
Dr. Vandana Ajay Kumar,
https://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/S000029PE/P001576/M019856/ET/15141858031econte
ntmodule8.pdf, (Nov. 22, 2024).
 judiciary acts as a check on the actions of the Executive and the Legislature. Through the
power of judicial review (Article 13), it can declare any law or executive action void if it
contradicts the Constitution. Additionally, the judiciary plays an essential role in
safeguarding the fundamental rights of citizens by hearing petitions under Article 32 (for
the Supreme Court) and Article 226 (for High Courts). The independence of the judiciary
is vital in ensuring the fairness and impartiality of the judicial process. 36

4. JUDICIAL INTERPRETATIONS OF THE SEPARATION OF POWERS

The principle of separation of powers is an essential feature of the Indian Constitution, though it
is not explicitly mentioned in the document. The Indian judiciary, particularly the Supreme Court,
has played a pivotal role in interpreting and shaping the understanding of this doctrine. Through a
series of landmark judgments, the court has defined and refined the relationship between the
Legislature, Executive, and Judiciary, balancing the constitutional framework while ensuring
that the powers of each branch remain distinct and respected. This section explores key Supreme
Court judgments on the separation of powers, with a particular focus on two landmark cases
Kesavananda Bharati v. State of Kerala 37 (1973) and Indira Nehru Gandhi v. Raj Narain
(1975). The principle of separation of powers, though not explicitly articulated in the Indian Constitution,
is an inherent feature of its framework. The Indian judiciary, particularly the Supreme Court, has been
instrumental in elucidating and reinforcing this doctrine through its interpretations. One of the most
significant judgments in this regard is Kesavananda Bharati v. State of Kerala (1973), where the Supreme
Court established the basic structure doctrine, asserting that certain fundamental features of the
Constitution, including separation of powers, cannot be amended even by Parliament. The Court
emphasized that the Constitution demarcates distinct functions and powers for the Legislature, Executive,
and Judiciary, and that any encroachment by one branch into the domain of another would disrupt the
constitutional balance. This case laid the foundation for judicial review as a mechanism to uphold the
principle of separation of powers, ensuring that neither the legislative nor the executive branches could
exercise unchecked power.

Another pivotal judgment, Indira Nehru Gandhi v. Raj Narain (1975), further solidified this
doctrine in the context of judicial scrutiny over constitutional amendments and electoral disputes.

36
Ibid
37
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
The case arose from the challenge to Indira Gandhi's election as Prime Minister, which was
declared void by the Allahabad High Court. In response, Parliament passed the 39th Constitutional
Amendment, which sought to exclude the Prime Minister's election from judicial review. The
Supreme Court struck down this amendment, holding that it violated the basic structure of the
Constitution, including the separation of powers and the rule of law. The Court reaffirmed its role
as the guardian of the Constitution, underscoring that even constitutional amendments could not
undermine the judiciary's authority to review actions of the other branches. Together, these
judgments highlight the dynamic role of the judiciary in safeguarding the constitutional separation
of powers, ensuring that the Legislature, Executive, and Judiciary operate within their respective
spheres while maintaining a system of checks and balances essential for democratic governance.

4.1 Key Supreme Court Judgments on the Separation of Powers

The Supreme Court of India has been instrumental in safeguarding the separation of powers
through its interpretation of the Constitution. Key judicial pronouncements have clarified the scope
of legislative, executive, and judicial powers and the boundaries within which each branch can
operate. Several important cases have emerged over time to define the contours of the doctrine,
with the Court often striking a balance between the need for institutional independence and the
recognition of interdependence among the branches of government.

1. State of Rajasthan v. Union of India (1977)38 In this case, the Supreme Court reinforced
the principle that the judiciary has the power to review laws passed by the legislature. The
judgment emphasized that judicial review is a fundamental aspect of the Indian
Constitution and is crucial in maintaining the system of checks and balances. The case
underscored the judiciary’s role in ensuring that the legislature’s actions do not violate the
Constitution.
2. Minerva Mills v. Union of India (1980)39 In this case, the Court declared that the basic
structure of the Constitution includes the principle of separation of powers. The ruling
emphasized that the balance between the powers of the three branches must be maintained
and that no branch should encroach upon the domain of the others. The decision reiterated

38
1977 AIR 1361, 1978 SCR (1) 1.
39
1980 AIR 1789, 1981 SCR (1) 206.
 the importance of judicial review as a safeguard against the misuse of power by the other
branches of government.
3. Golaknath v. State of Punjab (1967)40 In this case, the Supreme Court ruled that the
Parliament could not amend the Fundamental Rights enshrined in the Constitution. The
Court’s judgment solidified the notion that judicial review of legislative amendments is a
critical aspect of maintaining the separation of powers, ensuring that the legislature cannot
undermine constitutional principles through amendments.
4. S.R. Bommai v. Union of India (1994) This case involved the President’s decision to
dissolve state assemblies and impose President’s Rule. The Supreme Court held that the
President must act based on the advice of the Council of Ministers and cannot unilaterally
dismiss a state government without proper justification. The ruling reinforced the
importance of executive accountability to the legislature, affirming the need for a system
of checks and balances.

These judgments, among others, have reinforced the separation of powers as a fundamental
constitutional principle, ensuring that the legislature, executive, and judiciary act within their
respective domains, with each branch providing a check on the others.

4.2 Case Analysis Kesavananda Bharati v. State of Kerala (1973) 41

The Kesavananda Bharati v. State of Kerala case (1973) is one of the most significant decisions
in Indian constitutional law, particularly regarding the separation of powers and the basic
structure of the Constitution. The case arose out of a challenge to the Kerala Land Reforms
Act,196342 which sought to amend the property rights of religious institutions. The petitioners,
including Kesavananda Bharati, an advocate of religious freedom, argued that the amendments
violated the fundamental rights guaranteed under the Constitution.

While the case dealt with land reforms, its central issue was the power of Parliament to amend
the Constitution. The primary question before the Court was whether Parliament had the power to

40
1967 AIR 1643, 1967 SCR (2) 762).
41
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
42
The Kerala Land Reforms Act, 1963.
amend any part of the Constitution, including the Fundamental Rights guaranteed under Part III
of the Constitution. In a landmark judgment delivered by a 13-judge bench, the Supreme Court
ruled by a majority that Parliament’s power to amend the Constitution is not absolute. The
Court held that while Parliament can amend the Constitution under Article 368, it cannot alter the
basic structure of the Constitution. The concept of the "basic structure" was introduced as a
judicial innovation that sought to preserve the essential features of the Constitution against
potential abuse of power by the legislature.

Judicial Impact on Separation of Powers

The judgment in Kesavananda Bharati had a profound impact on the separation of powers
doctrine in India. By affirming the basic structure doctrine, the Court implicitly recognized that
while Parliament holds significant lawmaking powers, those powers are not unlimited. Parliament
cannot make amendments that would violate the core values of the Constitution, such as the
independence of the judiciary, the rule of law, or the fundamental rights of citizens. The judgment
also highlighted the role of the judiciary in safeguarding the Constitution’s integrity and ensuring
that both the Legislature and Executive do not exceed their constitutional limits. This reinforced
the judiciary’s position as the final arbiter in maintaining the balance of powers among the three
branches of government.

In essence, Kesavananda Bharati strengthened the separation of powers by ensuring that neither
the Legislature nor the Executive could encroach upon the judiciary’s powers or undermine the
fundamental principles of the Constitution.

4.3 Case Analysis Indira Nehru Gandhi v. Raj Narain (1975)43

Another pivotal case concerning the separation of powers is Indira Nehru Gandhi v. Raj Narain
(1975), which revolved around a dispute arising from the 1971 general election in India. Raj
Narain, the petitioner, had contested the election of Indira Gandhi, the then Prime Minister, on
the grounds that she had engaged in corrupt practices during the election campaign. Raj Narain
sought to challenge the election results, alleging electoral malpractice. The case reached the

43
AIR 1975 SUPREME COURT 2299, 1976 2 SCR 347.
Supreme Court, where the Court found that Indira Gandhi’s election had indeed been marred
by electoral irregularities, thus setting the stage for the landmark ruling. However, the Court’s
decision also had significant implications for the separation of powers and the relationship
between the Legislature and Judiciary.

The Political Context and Judgment

At the time of the case, India was undergoing a political crisis, and Indira Gandhi had declared a
state of emergency in 1975, giving her sweeping powers over the country. The emergency period
saw increased tension between the Executive and Judiciary, as the government sought to exert
control over the judicial processes, which culminated in the 36th Amendment and the Indira
Gandhi v. Raj Narain44 case. In the judgment, the Court ruled that the election of Indira Gandhi
was invalid due to corrupt practices. However, the case is more significant for the constitutional
amendments made following the judgment. Indira Gandhi, in response to the decision, sought
to amend the Constitution to limit the judicial review of election results. The 26th Amendment
was passed, which curtailed the power of the judiciary to review election matters, providing greater
power to the legislature in deciding electoral disputes.

Judicial Impact on Separation of Powers

The Indira Gandhi v. Raj Narain45 case demonstrates the potential conflict between the
branches, particularly when one branch seeks to curtail the powers of another. The judgment
involved significant tension between the Executive’s political power and the Judiciary’s role as
a check on executive actions. It revealed how the Executive could influence the Legislature to
limit judicial oversight, ultimately changing the course of judicial power. However, the case also
highlighted the importance of judicial independence in safeguarding democracy. Despite the
legislative amendments that limited judicial review in electoral matters, the Supreme Court’s
power to review constitutional amendments remained intact through subsequent rulings,
maintaining the judiciary's authority over constitutional matters. This case underscored the
enduring relevance of judicial review and separation of powers, ensuring that even when the

44
AIR 1975 SUPREME COURT 2299, 1976 2 SCR 347.
45
Ibid.
Legislature and Executive seek to expand their powers, the Judiciary can serve as a guardian of
constitutional principles.

5. PRACTICAL APPLICATION OF SEPARATION OF POWERS IN INDIA

The doctrine of separation of powers, though not rigidly implemented in India, plays a crucial
role in ensuring the smooth functioning of its democratic framework. The Indian Constitution
divides governmental responsibilities among the Legislature, Executive, and Judiciary, defining
their roles while ensuring coordination and accountability. This section delves into the practical
application of this doctrine in India, examining the specific roles of each branch and their
interactions, as well as the inevitable overlaps in a parliamentary democracy. 46

5.1 Role of the Legislature in Lawmaking

The Legislature, as the lawmaking body, holds a central role in India’s governance structure. At
the national level, it comprises the Lok Sabha (House of the People) and the Rajya Sabha
(Council of States). At the state level, legislatures consist of Legislative Assemblies and, in some
states, Legislative Councils.47

The primary function of the Legislature is to enact laws that address the needs and aspirations of
society. These laws cover a wide range of areas, from public policy to individual rights and
governance. Legislators draft, debate, and approve bills, which then become laws after receiving
presidential or gubernatorial assent.

1. Budget and Financial Oversight The Legislature exercises significant control over public
finances. It scrutinizes and approves the annual budget, ensuring that the Executive uses
public funds responsibly. The Public Accounts Committee and other parliamentary
committees oversee government expenditure to prevent misuse of resources.
2. Executive Accountability The Legislature holds the Executive accountable through
various mechanisms, such as question hours, debates, and motions of no confidence.

46
Doctrine of Separation of Powers https://www.drishtiias.com/daily-updates/daily-news-analysis/doctrine-of-
separation-of-powers-(Nov 23, 2024).
47
Legislature, https://knowindia.india.gov.in/profile/the-union/legislature.php (Nov 23, 2024).
 Ministers are required to answer queries from legislators, ensuring transparency and
accountability.
3. Constitutional Amendments The Legislature has the authority to amend the Constitution,
provided the amendments do not alter its basic structure (as established in the
Kesavananda Bharati case).48 This function underscores its pivotal role in adapting
governance to changing needs.

Despite its critical role, the Legislature faces challenges such as disruptions, declining quality of
debates, and inadequate scrutiny of bills. These issues highlight the need for strengthening
legislative processes to enhance its effectiveness in lawmaking and oversight.

5.2 Role of the Executive in Implementation

The Executive is responsible for implementing laws and policies passed by the Legislature. It
comprises the President (the constitutional head of state), the Prime Minister, the Council of
Ministers, and the extensive bureaucracy. At the state level, it includes the Governor, the Chief
Minister, and their respective administrations. 49

1. Policy Formulation and Execution The Executive formulates and implements policies to
address societal challenges and achieve developmental goals. Ministries and departments
translate legislative mandates into actionable programs, ensuring their effective delivery.
2. Administration The Executive oversees the day-to-day administration of the country. This
includes maintaining law and order, delivering public services, and managing
infrastructure development. Bureaucrats play a critical role in implementing policies at the
grassroots level.
3. Diplomatic and Defense Responsibilities The Executive handles India’s foreign relations
and defense. The Prime Minister and the External Affairs Ministry lead diplomatic
efforts, while the defense forces operate under the Executive’s command to safeguard
national security.

48
AIR 1973 SUPREME COURT 1461, 1973 4 SCC 225.
49
Government of India https://en.wikipedia.org/wiki/Main_Page (Nov 22, 2024).
 4. Emergency Powers The Executive wields significant powers during emergencies under
Articles 352, 356, and 360 of the Constitution. These provisions enable swift action to
address crises but have also raised concerns about potential misuse. 50

While the Executive plays a vital role in governance, it occasionally faces criticism for
overstepping its boundaries, especially when it issues ordinances bypassing the Legislature or
exercises undue influence over the Judiciary and other institutions. Ensuring accountability and
transparency in its operations remains a constant challenge.

5.3 Role of the Judiciary in Upholding Constitutional Norms

The Judiciary serves as the guardian of the Constitution, ensuring that the actions of the
Legislature and Executive align with constitutional principles. Its independence is a cornerstone
of India’s democratic framework, allowing it to act impartially. 51

1. Judicial Review The Judiciary has the power of judicial review, enabling it to strike down
laws and executive actions that violate constitutional provisions. This ensures that the other
branches remain within their constitutional limits.
2. Protection of Fundamental Rights The Judiciary safeguards the fundamental rights of
citizens by addressing grievances and ensuring justice. For instance, the Supreme Court
and High Courts entertain public interest litigations (PILs) to address issues of widespread
concern.
3. Interpreting the Constitution The Judiciary interprets the Constitution and clarifies
ambiguities, ensuring that it evolves with changing societal needs. Landmark judgments,
such as those in the Kesavananda Bharati and Maneka Gandhi cases, have shaped
India’s constitutional framework.52

50
The Union Executive and Legislature https://www.toppr.com/guides/general-knowledge/indian-constitution-
fundam (Nov 24, 2024).
51
Human Rights Instruments Basic Principles on the Independence of the Judiciary
https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principl (Nov 24, 2024).
52
Ibid.
 4. Dispute Resolution The Judiciary resolves disputes between individuals, between
individuals and the state, and between different branches or levels of government. This role
is particularly important in maintaining federal harmony.

Despite its importance, the Judiciary faces challenges such as delays in case disposal, allegations
of judicial overreach, and issues related to transparency in judicial appointments. Strengthening
judicial infrastructure and processes is essential to enhance its effectiveness.

5.4 Interactions and Overlaps Between the Branches

practice, the separation of powers in India is not absolute. The Constitution envisions a system of
checks and balances, where the branches interact and sometimes overlap to ensure governance is
effective and In responsive to societal needs. This interplay is particularly evident in India’s
parliamentary democracy, where the Executive emerges from the Legislature and is accountable
to it.53

1. Legislature and Executive The relationship between these two branches is marked by
interdependence. Ministers, who are part of the Executive, are also members of the
Legislature. This overlap ensures coordination in policymaking and implementation but
can blur the lines of accountability, especially when the ruling party has a significant
majority.
2. Executive and Judiciary The Judiciary acts as a check on the Executive’s actions through
judicial review. However, the Executive’s role in judicial appointments (through the
Collegium System and the National Judicial Appointments Commission (NJAC)
controversy) highlights potential conflicts between the two branches. 54
3. Legislature and Judiciary The Legislature has the power to amend laws and even
overturn judicial decisions through new legislation, provided it respects the basic
structure doctrine. At the same time, the Judiciary can review legislative actions to ensure
their constitutionality.

53
SEPARATION OF POWERS IN INDIA Devanshi Sharma https://pure.jgu.edu.in/id/eprint/(Nov 24,2024).
54
Separation of Powers in the Indian Constitution - Relationship between Executive, Legislature and Judiciary
https://byjus.com/free-ias-prep/separation-power-indian-constitution/ (Nov 22,2024).
 4. Judiciary and Public Policy In recent years, the Judiciary has expanded its role through
judicial activism, stepping into areas traditionally reserved for the Legislature or
Executive. For instance, rulings on environmental protection, electoral reforms, and social
justice issues demonstrate the Judiciary’s proactive approach to addressing governance
gaps.

While these overlaps enable flexibility and responsiveness, they also raise concerns about
overreach by one branch into the domain of another. For instance, excessive judicial activism can
undermine the authority of the Legislature and Executive, while Executive overreach can threaten
judicial independence. 55

6. CHALLENGES AND LIMITATIONS OF SEPARATION OF POWERS IN INDIA

The principle of separation of powers, while integral to democratic governance, faces several
challenges and limitations in the Indian context. The unique parliamentary framework of India,
with its overlapping functions and interdependencies among the three branches, gives rise to
potential conflicts and complications. This section delves into the primary challenges of judicial
activism, executive overreach, and the delicate balance between accountability and independence.
The principle of separation of powers, while foundational to democratic governance, encounters several
challenges and limitations within the Indian context. India’s parliamentary system inherently involves an
overlap between the legislative and executive branches, as the executive (Council of Ministers) is drawn
from and remains accountable to the legislature. This structural fusion creates interdependencies that,
while necessary for coordination and effective governance, often blur the boundaries between these two
branches. One of the most significant challenges arises from judicial activism, where the judiciary,
particularly the higher courts, assumes a proactive role in addressing issues perceived as neglected by the
legislature or executive. While judicial intervention is often justified in protecting fundamental rights or
upholding constitutional principles, it has led to accusations of judicial overreach, with the courts being
criticized for encroaching into the domains of policymaking and administration, traditionally the purview
of the legislature and executive. This raises concerns about the judiciary overstepping its constitutional
mandate and disrupting the balance of powers.

55
Judicial Activism and Overreach https://vajiramandravi.com/quest-upsc-notes/judicial-activism-and-overreach/
(Nov 23, 2024).
Conversely, executive overreach also poses a threat to the separation of powers, particularly when
the executive dominates the legislature or attempts to undermine the judiciary. This can happen
through excessive use of ordinances, bypassing legislative scrutiny, or attempts to influence
judicial appointments and decisions, thereby compromising the independence of the judiciary.
Furthermore, the delicate balance between accountability and independence becomes a critical
issue. While each branch must remain accountable to ensure transparency and prevent abuse of
power, excessive interference by one branch in the functioning of another can undermine its
autonomy. For instance, parliamentary privilege and legislative supremacy can occasionally lead
to conflicts with judicial review, as seen in cases where legislations or executive actions are
invalidated by the courts. Similarly, the judiciary's insistence on insulating itself from external
influence, though vital for its independence, can sometimes be perceived as a lack of
accountability. In this complex framework, maintaining a functional equilibrium that respects the
distinct roles of each branch while allowing for necessary checks and balances

6.1 Judicial Activism An Overreach of the Judiciary?

Judicial activism refers to the proactive role of the Judiciary in addressing issues beyond its
conventional purview, often stepping into the domains of the Legislature and Executive. In India,
judicial activism has emerged as a response to executive inaction, legislative delays, or violations
of fundamental rights. While this activism has led to several landmark decisions, it also raises
questions about judicial overreach and the breach of separation of powers. 56

1. Judicial Overreach and Policy Making

o The Judiciary has increasingly intervened in matters of policy and administration,
traditionally the domain of the Executive and Legislature. For instance, decisions
on environmental regulation, such as banning diesel vehicles in Delhi, and
directives on public interest litigations (PILs), such as banning firecrackers,
demonstrate an expanded judicial role in governance.
o Critics argue that such interventions amount to encroachment and undermine the
authority of the elected branches.
2. Public Interest Litigation (PIL)

56
Ibid.
 o The PIL mechanism, introduced to democratize access to justice, has empowered
citizens to approach courts for issues of public concern. However, the misuse of
PILs has burdened the Judiciary with matters that should ideally be addressed by
the Executive or Legislature.
o For example, judicial directives on administrative matters like road safety or urban
planning highlight how PILs can compel the Judiciary to enter policymaking
territory.57
3. Judiciary’s Defense
o Supporters of judicial activism argue that it ensures accountability, particularly in
cases of executive inaction or corruption. Landmark judgments like Vishaka v.
State of Rajasthan (1997)58, which laid down guidelines for sexual harassment at
workplaces, underscore the necessity of judicial intervention in the absence of
legislative action.
4. Implications of Judicial Overreach
o Judicial overreach can lead to inefficiency and strain on resources as the Judiciary
addresses issues outside its expertise.
o Furthermore, it risks undermining the democratic principle of accountability by
allowing unelected judges to assume roles meant for elected representatives.59

6.2 Executive Overreach and Its Implications

The Executive in India wields significant power, especially in a parliamentary system where it
dominates the Legislature. However, instances of executive overreach have raised concerns about
the erosion of democratic norms and the dilution of constitutional checks and balances. 60

1. Ordinance-Making Power

57
Public Interest Litigation (PIL) in India, https://byjus.com/free-ias-prep/public-interest-litigation-pil/ (Nov 22,
2024).
58
AIR 1997 SC 3011.
59
Judicial Overreach, Judicial Restraint and Judicial Activism in India https://lawctopus.com/clatalogue/clat-
pg/overeach-restraint-judicial-activism-in-india/ (Nov 23, 2024).
60
Separation of Powers in the Indian Constitution - Relationship between Executive, Legislature and Judiciary
https://byjus.com/free-ias-prep/separation-power-indian-constitution/ (Nov 2024).
 o The ordinance-making power of the Executive, under Articles 123 and 213,
allows it to legislate in extraordinary circumstances when the Legislature is not in
session. However, the frequent use of ordinances, often to bypass legislative
scrutiny, reflects executive overreach.
o For instance, in D.C. Wadhwa v. State of Bihar (1987),61 the Supreme Court
criticized the misuse of ordinances as a substitute for legislation.
2. Centralization of Power
o Executive dominance is often evident in the concentration of power at the Union
level, with the Centre encroaching on the autonomy of state governments. The
imposition of President’s Rule under Article 356, sometimes for political motives,
has drawn criticism for undermining federalism. 62
3. Control Over the Legislature
o In India’s parliamentary system, the Executive often dominates the Legislature, as
the Council of Ministers is drawn from the majority party in the Legislature. This
majority can limit legislative independence, reducing Parliament to a rubber-stamp
for executive decisions.
o For example, the passage of crucial bills as money bills to bypass the Rajya Sabha
(as in the case of the Aadhaar Act, 2016) illustrates how the Executive can sidestep
legislative checks.
4. Executive Encroachment on Judiciary
o The Executive’s role in judicial appointments has been a contentious issue. The
debate over the National Judicial Appointments Commission (NJAC)
highlighted the tension between the Judiciary and the Executive regarding judicial
independence.63
o The Judiciary’s rejection of the NJAC Act as unconstitutional underscored its
resistance to executive encroachment.
5. Implications of Executive Overreach

61
1987 AIR 579, 1987 SCR (1) 798.
62
Minerva Mills Ltd. & Ors vs Union Of India & Ors on 31 July, 1980 Equivalent citations: 1980 AIR 1789, 1981
SCR (1).
63
The NJAC Case and Judicial Independence: Conceptual and Contextual
Safeguards https://doi.org/10.1093/oso/9780199485079.003.0014 (Nov 24, 2024).
 o Excessive executive dominance can weaken democratic institutions and erode
public trust. It risks creating an imbalance in governance, undermining the principle
of separation of powers.

6.3 The Balance Between Accountability and Independence

The effectiveness of the separation of powers lies in maintaining a delicate balance between
accountability and independence among the branches. In the Indian context, this balance is
frequently tested, as each branch strives to assert its autonomy while ensuring checks on the
others.64

1. Legislature’s Accountability and Independence

o The Legislature is accountable to the public through elections, but its independence
is sometimes compromised by executive dominance, particularly in a majoritarian
setup.65
o The lack of robust internal mechanisms, such as meaningful debates or scrutiny of
bills, undermines its role as a check on the Executive.
2. Executive’s Accountability and Independence
o The Executive is accountable to the Legislature and, by extension, the electorate.
However, its independence is essential for swift decision-making and effective
governance.
o Instances where the Executive bypasses the Legislature, as in the case of frequent
ordinance promulgation, highlight the tension between accountability and
independence.
3. Judiciary’s Accountability and Independence
o Judicial independence is vital for upholding the rule of law and ensuring
impartiality. The Collegium System for judicial appointments reflects the
Judiciary’s desire to protect its autonomy.

64
Separation of Power https://blog.ipleaders.in/separation-of-powers/ (Nov 22, 2024).
65
Philip L. Dubois Accountability, Independence, and the Selection of State Judges: The Role of Popular Judicial
Elections https://scholar.smu.edu/cgi/viewcontent.cgi?article=2657&context=smulr (Nov 23, 2024).
 o However, concerns about lack of transparency and accountability in the
appointment and functioning of judges persist. Critics argue that the absence of
external checks can lead to judicial overreach or inefficiency. 66
4. Inter-Branch Conflicts
o The overlapping functions of the branches often lead to conflicts. For instance,
judicial invalidation of laws passed by the Legislature or executive policies, though
necessary in some cases, can strain relationships among the branches.
o Similarly, the Legislature’s power to amend the Constitution, as seen in cases like
Indira Nehru Gandhi v. Raj Narain (1975), 67raises questions about its limits.
5. Challenges in Ensuring Balance
o Striking a balance between accountability and independence requires robust
institutional frameworks and mutual respect among the branches. However,
political polarization, weak institutional mechanisms, and public pressure often
disrupt this balance.68

7. CONCLUSION

The doctrine of separation of powers, a cornerstone of constitutional governance, has significantly

shaped the functioning of modern democracies, including India. It is rooted in the idea that the
distribution of authority among the legislative, executive, and judicial branches ensures
accountability, prevents power concentration, and maintains checks and balances. India’s
constitutional framework adapts this principle to its unique parliamentary democracy, fostering
interdependence among branches while upholding their independence. This conclusion
synthesizes the key findings of this study, explores the future of this doctrine in India, and provides
recommendations to strengthen democratic governance. 69

7.1 Summary of Key Findings

66
Ibid.
67
AIR 1975 SUPREME COURT 2299,
68
Ibid.
69
V. Sudhish Pai Separation of Powers and the Judiciary https://www.nja.gov.in/Concluded_Programmes/2018-
19/P-1110_PPTs/12.Separation%20of%20the%20powers%20and%20the%20judiciary.pdf (Nov 23, 2024).
 1. Theoretical Basis and Constitutional Framework
The principle of separation of powers, articulated by Montesquieu, underpins democratic
systems globally. India’s Constitution reflects this doctrine but adapts it to accommodate
the dynamics of a parliamentary system, allowing overlaps between the branches to ensure
effective governance. For instance, the Legislature and Executive are closely intertwined,
while the Judiciary functions as an independent arbiter.
2. Judicial Interpretations
Judicial interpretations, such as those in Kesavananda Bharati v. State of Kerala
(1973)70 and Indira Nehru Gandhi v. Raj Narain (1975),71 have reinforced the doctrine
by curbing legislative and executive excesses. The judiciary’s role as the guardian of
constitutional principles ensures that fundamental rights and the basic structure of the
Constitution remain inviolable.
3. Challenges and Limitations
o Judicial Activism While judicial activism ensures accountability, excessive
intervention risks judicial overreach, undermining the roles of the Legislature and
Executive.
o Executive Overreach Instances of ordinance re-promulgation and misuse of
Article 356 illustrate the Executive’s tendency to dominate other branches.
o Balance of Accountability and Independence72 The interdependence of the
branches often blurs their functions, leading to conflicts and weakening
institutional checks.
4. Practical Application
The interplay between the Legislature, Executive, and Judiciary has enabled governance in
India to remain functional despite challenges. However, overlaps and tensions among the
branches continue to test the doctrine’s adaptability.

7.2 The Future of Separation of Powers in India

70
AIR 1973 SUPREME COURT 1461.
71
AIR 1975 SUPREME COURT 229.
72
Ibid.
The future of the doctrine in India depends on the ability of the Legislature, Executive, and
Judiciary to respect their constitutional boundaries while collaborating effectively. Emerging
challenges, such as increasing political polarization, the rise of populist governance, and evolving
societal expectations, will test the resilience of this principle. 73

1. Strengthening Institutional Integrity

o Institutions must remain committed to constitutional values, avoiding actions that
undermine democratic principles.
o The Judiciary must continue to safeguard the Constitution while exercising restraint
to prevent accusations of overreach.74
2. Evolving Governance Models
o As governance becomes more complex, the traditional separation of powers may
require adaptations. For instance, emerging technologies and global challenges
demand coordinated responses from all branches.
3. Reforming the Appointment Processes
o The ongoing debate over judicial appointments highlights the need for transparent
and accountable systems that respect judicial independence while involving checks
from other branches.75
4. Public Engagement and Awareness
o The effectiveness of the separation of powers depends on an informed citizenry that
holds each branch accountable. Efforts must be made to educate the public about
the roles and limitations of each branch. 76

7.3 Recommendations for Strengthening Democratic Governance

1. Institutional Reforms

73
Separation of Powers in the Indian Constitution - Relationship between Executive, Legislature and Judiciary
https://byjus.com/free-ias-prep/separation-power-indian-constitution/ (Nov 23, 2024).
74
Transformative constitutionalism: Comparing the apex courts of Brazil, India and South Africa
https://nludelhi.ac.in/download/publication/2015/Transformative%20Constitutionalism.pdf (Nov 23,2024).
75
Reforming the process of judicial appointments https://www.thehindu.com/opinion/op-ed/reforming-judicial-
appointments/article68593248.ece (Nov 23, 2024).
76
Separation of Power https://blog.ipleaders.in/separation-of-powers/ (Nov 25, 2024).
 o Establish clearer guidelines to prevent overlaps, particularly in areas like judicial
activism and ordinance promulgation.
o Reform the parliamentary process to enhance legislative scrutiny of executive
actions, ensuring robust debates and accountability.77
2. Enhancing Judicial Accountability
o Introduce measures to make the judiciary more transparent, particularly in
appointments and case management.
o Develop mechanisms for peer review within the judiciary to address concerns of
overreach.
3. Limiting Executive Dominance
o Ensure stricter adherence to constitutional provisions, such as those governing
ordinances and the use of Article 356.
o Strengthen federalism by respecting state autonomy and promoting cooperative
federalism.
4. Promoting Checks and Balances
o Foster collaborative mechanisms between branches to address national challenges
without compromising constitutional boundaries.
o Revive and empower parliamentary committees to hold the Executive accountable
effectively. 78
5. Technology and Governance
o Leverage technology to enhance transparency, such as live-streaming court
proceedings and digitizing legislative records.
o Address challenges posed by digital platforms, ensuring that laws and policies are
in line with constitutional principles.

The separation of powers in India remains a dynamic and evolving principle, integral to its
constitutional governance. Despite challenges, the doctrine has ensured that no single branch
dominates, preserving democracy and constitutional integrity. By addressing limitations through

77
Guidelines on Democratic Lawmaking for Better Laws https://www.osce.org/files/f/documents/a/3/558321_3.pdf
(Nov 25, 2024).
78
Dangerous Liaisons: Separation of Powers and Checks and Balances
https://academic.oup.com/book/26983/chapter-abstract/196185090?redirectedFrom=fulltext (Nov 26, 2024).
institutional reforms, fostering transparency, and strengthening public awareness, the balance
between independence and accountability can be maintained. As India navigates contemporary
challenges, the doctrine of separation of powers will continue to serve as a cornerstone of its
democratic framework, ensuring governance that upholds the spirit of the Constitution and
safeguards the rights of its citizens. 79

79
Separation of Powers in India: Executive, Legislative, and Judiciary https://sleepyclasses.com/separation-of-
powers-in-india/ (Nov 26, 2024).
Thank you