LEGISLATURE, EXECUTIVE & JUDICIARY
Abstract
This article delves into the doctrine of Separation of
Powers, tracing its historical roots and examining its application within the
Indian constitutional framework. While India avoids a rigid division, it
maintains a delicate balance between the Legislature, Executive, and Judiciary.
Through key case laws and current developments like the Electoral Bonds verdict,
that highlights the risks of institutional overreach and the importance of
accountability. It argues that sustaining a vibrant democracy requires not just
a division of power, but ongoing vigilance, transparency, and mutual respect
among the pillars of governance to prevent the concentration of authority in
any single branch.
Introduction
What happens when the judge becomes
the lawmaker, the lawmaker starts interpreting judgments, and the executive
begins punishing without a trial? The balance collapses — and so does
democracy. That is why the doctrine of Separation of Powers, rooted in the
Latin maxim triaspolitica[1],
remains essential to any constitutional democracy. A simple yet powerful
principle given by Montesquieu — “power
should be a check to power”[2]—
captures exactly why this doctrine remains the backbone of constitutional
democracy.
Though the Indian Constitution does
not enforce a strict separation, it reflects the doctrine’s spirit through
well-defined roles. The three branches — Legislature, Executive, and Judiciary
— are designed to function independently while maintaining mutual respect and
accountability. Article 50[3], under
the Directive Principles of State Policy says, “the state shall take steps to
separate the judiciary from the executive”. Though not enforceable, it reflects
a constitutional ideal meant to protect judicial impartiality.
The importance of separation becomes
undeniable when institutions begin to step into each other’s shoes. When the
executive resists judicial oversight or delays appointments, or when courts
intervene due to legislative inaction, it’s not just a functional shift — it’s
a constitutional imbalance. Incidents like the Pegasus surveillance case[4]
reminds us that institutional harmony isn’t automatic; it needs constant
protection.
Ever wondered how this doctrine
actually works in law and life? Then let’s trace its evolution from political
theory to constitutional practice.
The Doctrine Of Separation Of Power: Origin And Evolution
The idea that power must be divided
is as old as political thought itself.Aristotle observed that a
well-ordered state must separate its deliberative, executive, and judicial
functions[5]. But it
was Montesquieu,
centuries later, who transformed that observation into a constitutional
doctrine. In his work The Spirit of Laws[6], he argued
that liberty is endangered when all powers rest with a single entity. True
freedom survives only when power restrains power — not through conflict, but
through thoughtful distribution.
The doctrine wasn’t born of
idealism, but distrust of unchecked authority. History had shown — when one
body held all powers, justice and neutrality are the first casualties. The
legal maxim nemo debetessejudex in
propria causa[7]— no
one should be a judge in their own cause — reflects the same fear.
The United States Constitution was
the first to implement a rigid separation of powers, with each organ operating
in watertight compartments. Other democracies followed, each adapting
the doctrine to their
socio-political realities.
India, in contrast, chose balance
over rigidity. Our Constitution reflects not a mechanical division, but a
thoughtful structure that allows cooperation without compromising independence.
Though ancient in origin, the doctrine remains relevant — not a rigid formula,
but a flexible safeguard against the concentration of power.
To understand how this principle
operates in practice, we must first examine the role and responsibilities of
each branch — beginning with the Legislature.
Role of the Legislature: Making the Law
The first organ in the
constitutional chain of power is the Legislature — the body that transforms
public demands into enforceable law. At the Union level, Parliament exercises
this power under Articles 245 and 246[8], the
constitution divides the subjects between the Union and the States through the
Seventh Schedule[9].
But law-making is just one part –
the Legislature also debates on policies, scrutinises the Executive, and sets
national direction. Every bill introduced, every budget passed, and every
motion debated reflects democracy in action.
A powerful reflection of this
balance was seen in the case where the Legislature, seeking transparency in
judicial appointments, passed the NJAC Act[10] with
near-unanimous support across political parties. The Executive followed
through. But when challenged, the Judiciary struck it down, holding that it
violates the independence of the judiciary. This moment became a reminder that
even with shared intent, no organ may cross its constitutional limits.
The Legislature, then, is not just a
beginning — it is the pulse of democracy. Once it lays down the law, the
Executive puts it into action.
Role of the Executive: Enforcing the Law
If the Legislature provides the
blueprint, the Executive gives it life. It is responsible for the day-to-day
governance and implementing laws. In India, this power vests in the President
under Article 53[11], and
in the Governor at the state level under Article 154[12], but in
practice, it is exercised by the executive branch through elected officials.
The Executive enforces laws passed
by the Legislature, executes schemes, and ensures the machinery of government
runs smoothly — from delivering welfare to maintaining law and order. Its
actions must reflect legislative intent and remain subject to judicial review.
For instance, during COVID-19
pandemic, the Executive issued swift directions under the Disaster Management
Act, 2005[13],
enacted by the Legislature. The Judiciary later intervened to ensure these
actions respected fundamental rights — a practical example of checks and
balances.
Thus, the Executive serves as a link
between the law and the people — active, visible, and accountable. Now let’s
talk about Judiciary which ensures that all the actions remain within the set
boundaries.
Role of the Judiciary: Interpreting the Law
While the Executive enforces the
law, the Judiciary — silent yet powerful — ensures those actions remain within
constitutional limits. It interprets laws, resolves disputes, maintains checks
and balances, and protects citizens when state actions defy justice.
In India, this authority flows from
Article 124[14]
(Supreme Court) and Article 214[15] (High
Courts), with Article 141[16]
ensuring that decisions of the Supreme Court apply uniformly across the
country. Though not explicitly mentioned, judicial review is a firmly
established power that allows courts to invalidate legislative or executive
actions that breach constitutional provisions. The maximUbi jus ibiremedium[17]—
where there is a right, there is a remedy — perfectly encapsulates this role.
A notable instance of judicial
oversight was seen after the 2019 Hyderabad encounter, where four accused were
killed in police custody. In response, the Judiciary directed an independent
inquiry and reiterated safeguards to prevent custodial violence. In the absence
of updated legislative measures, these directions served as a constitutional
reminder that justice must never come at the cost of the rule of law.
The Judiciary, then, acts not as a
ruler but as a constitutional compass, keeping governance aligned with justice.
To understand how this balance plays out in India, we must now explore how
separation of powers is uniquely adapted to our constitutional framework.
Separation of Powers: The Indian Model in a
Global Context
●
Fusion or Division? –
The Indian Approach
India’s Constitution
doesn’t build silos — it builds channels. The Executive rises from the
Legislature, debates in it, and answers to it. The Judiciary holds its ground,
yet often steps in when gaps appear in law or enforcement. This isn’t chaos —
it’s controlled overlap, where power is not locked in boxes, but woven into a
working balance. India’s framers didn’t mimic—they composed a separation suited
to diversity, disruption, and democratic depth.
●
Comparative Glimpse –
Global Models
Across the globe, the
same doctrine plays out in different scripts.
➔
In the United States, separation is strict,
the President can reject (veto[18]),
Congress can inquire, and courts can invalidate any law.
➔
In the United Kingdom, it’s more like a
handshake — where Parliament and Executive often wear the same coat.
➔
In France, a semi-presidential democracy,
executive power is split between a President and a Prime Minister.
India borrows from all
three but bows to none — choosing instead a hybrid system that prizes
institutional respect over institutional isolation. We will now analyze important court rulings that
clarify this balance of powers.
Landmark Cases on Separation of Powers
Several key judicial
decisions have shaped India’s doctrine of separation of powers by affirming the
limits of each branch and ensuring accountability:
1. KesavanandaBharati v.
State of Kerala, (1973) 4 SCC 225[19]:
Facts:KesavanandaBharati, a
seer, challenged Parliament’s authority to amend the Constitution, particularly
where it threatened fundamental rights.
Held: The Supreme Court
introduced the “basic structure” doctrine, declaring that while Parliament can
amend the Constitution, it cannot alter its core features—ensuring that
judicial independence and constitutional supremacy are preserved.
2. Minerva Mills Ltd. and
Ors. v. Union of India and Ors., (1980) 3 SCC 625[20]:
Facts: Constitutional
amendments attempted to give Parliament overriding powers, allowing it to limit
fundamental rights freely.
Held: The Court invalidated
these changes, reaffirming that the Constitution mandates a balance between the
powers of the Legislature and the rights of citizens, thereby upholding the
idea of separation.
3. S.P. Gupta v. Union of
India, 1981 Supp SCC 87[21]:
Facts: The method of
judicial appointments was challenged due to excessive Executive involvement.
Held: The court emphasised
transparent judicial appointments to prevent Executive interference..
4. L. Chandra Kumar v.
Union of India and Ors., (1997) 3 SCC 261[22]:
Facts: The Executive had
established tribunals with the intention of bypassing the regular judiciary.
Held: The Court held that
such tribunals must still be subject to judicial review, reinforcing the
Judiciary’s role as the final interpreter of the Constitution.
5. I.R. Coelho (Dead) by
LRs v. State of Tamil Nadu, (2007) 2 SCC 1[23]:
Facts: Several laws were
placed in the Ninth Schedule[24]
to shield them from judicial review.
Held: The Court ruled that
even such laws can be struck down if they infringe upon fundamental rights,
thus checking legislative overreach and preserving constitutional checks and
balances.
These cases
collectively ensure that no branch exceeds its constitutional limits, keeping
power balanced and preventing misuse. Next, we will examine how these
principles operate within India’s governance system.
Institutional Overlaps & Present-Day
Challenges
In a democracy as
layered as India’s, the boundaries between the Legislature, Executive, and
Judiciary often intersect. While some overlap is essential for coordination,
unchecked encroachment distorts the constitutional equilibrium. The 2024
Electoral Bonds verdict highlighted this tension—where the Executive’s use of a
money bill[25]
to push through political funding reforms, bypassing the Rajya Sabha, was
struck down by the Supreme Court.
Critics termed it
judicial overreach; others viewed it as necessary correction where legislative
scrutiny was circumvented. The Judiciary’s role in such moments walks a fine
line—balancing restraint with constitutional duty.
The challenge lies not
merely in separation, but in ensuring each branch functions within its mandate
without paralyzing governance. When one organ hesitates or exceeds, another
often steps in—not out of ambition, but in response to democratic necessity.
The debate today is not about power, but about its proportion and purpose.
Conclusion
“Power corrupts; absolute power corrupts
absolutely.”[26] — Lord Acton’s timeless
warning echoes louder than ever today. History has shown us that when power
goes unchecked, even well-intentioned institutions can drift toward
authoritarianism.
Separation of powers isn’t just a fundamental concept—it’s
the backbone of a healthy democracy, designed to prevent any single branch from
gaining unchecked control.
To preserve this balance, a few key measures stand out:
promoting transparency in decision-making, ensuring merit-based and transparent
judicial appointments, and strengthening independent oversight bodies.
Encouraging respectful dialogue among the branches can also help maintain their
distinct roles without conflict.
Perhaps it’s time we must ask ourselves: In an era where the boundary lines of
power often begin to blur, how can we ensure that the very guardians of
democracy do not become its greatest threat?
References
1.
Constitution
of India, 1950: https://legislative.gov.in/constitution-of-india
2.
Indian
Kanoon: https://indiankanoon.org
3.
Encyclopædia
Britannica: https://www.britannica.com/topic/separation-of-powers
4.
Live Law:
https://www.livelaw.in
5.
Wikipedia:
https://en.wikipedia.org/wiki/Separation_of_powers
[1]Triaspolitica (Latin for “three powers”).
[2]CHARLES DE MONTESQUIEU, THE SPIRIT OF LAWS (1748), available at https://press-pubs.uchicago.edu/founders/documents/v1ch17s9.html
(last visited June 9, 2025).
[3]India Const. art. 50.
[4]
Manohar Lal Sharma v. Union of India, WP (Crl) 314/2021 (India), https://indianexpress.com/article/india/sc-pegasus-israeli-spyware-nation-security-9972255/
(last visited June 9, 2025).
[5] Aristotle,
Politics bk. IV, Part XIV (trans. Benjamin Jowett, ca. 350 BCE), available at https://oll.libertyfund.org/pages/aristotle-s-politics
(last visited June 9, 2025).
[6] CHARLES DE MONTESQUIEU, THE SPIRIT OF LAWS (1748).
[7]Nemo debetessejudex in
propria causa
(Latin for “no one should be a judge in their own cause”).
[8]India Const. arts. 245, 246.
[9] India Const.
Sched. IX, list III.
[10] The
National Judicial Appointments Commission Act, No. 40 of 2014 (India), enacted
Dec. 31, 2014, https://www.indiacode.nic.in/handle/123456789/2142?sam_handle=123456789/1362
(last visited June 9, 2025).
[11]India Const. art. 53.
[12]India Const. art. 154.
[13]Disaster Management Act,
No. 53 of 2005 (India), enacted Dec. 23, 2005, https://www.indiacode.nic.in/handle/123456789/2045?sam_handle=1 (last visited
June 9, 2025).
[14]India Const. art. 124.
[15]India Const. art. 214.
[16]India Const. art. 141.
[17]Ubi jus ibiremedium (Latin for “where there is a right,
there is a remedy”).
[18]Veto, Britannica
Dictionary, https://www.britannica.com/dictionary/veto (last visited
June 9, 2025).
[19]KesavanandaBharati v. State of Kerala, (1973) 4 SCC 225
(per Sikri, C.J., majority) (India).
[20]Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625
(per Chandrachud, C.J., majority) (India).
[21]S.P. Gupta v. Union of India, 1981 Supp. SCC 87, 150 (per
Bhagwati, J., majority) (India).
[22] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 (per
Ahmadi, C.J., majority) (India).
[23] I.R. Coelho (Dead) by LRs v. State of Tamil Nadu, (2007)
2 SCC 1, 58 (per Sabharwal, C.J., unanimous) (India).
[24]
India Consti. Sched. IX.
[25]
India Const. art. 110; Money Bill, Encyclopædia Britannica, https://www.britannica.com/topic/money-bill
(last visited June 9, 2025).
[26]Lord Acton, Letter to
Bishop Mandell Creighton (Apr. 5, 1887), reprinted in Essays on Freedom and
Power 364 (1948).
Separation of Powers in Indian Constitution
Legislature Executive Judiciary in India
Montesquieu Trias Politica Doctrine
Article 50 of Indian Constitution
Kesavananda Bharati case
NJAC Act and Judicial Independence
Judicial Review in India
Electoral Bonds Verdict Supreme Court
Checks and Balances Indian Democracy
Role of Judiciary Legislature Executive
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