Separation of Powers in the Indian Constitution

Separation of powers is the idea that the work of government should be divided among three separate branches, so that no single branch holds all the power. The legislature (Parliament and state assemblies) makes laws. The executive (the government of the day, with the President, Prime Minister and ministers) carries out those laws. The judiciary (the courts) interprets the laws and settles disputes, including whether a law is valid under the Constitution.

India follows this idea, but in a flexible way: the three branches are kept apart in their core work, yet they also check and balance one another.

Why does it exist?

If one person or one body could make the law, enforce it and also judge cases under it, there would be nobody to stop that power from being misused. Think of a cricket match where the batting captain is also the umpire. Even an honest captain would find it hard to give himself out. Splitting the roles protects the people's freedom, because each branch can stop the other two from going too far.

Where did the idea come from?

The modern form of the idea was given by the French thinker Montesquieu in his book The Spirit of the Laws (1748). He argued that liberty is safest when the powers of making, enforcing and judging laws are held by different hands. The United States Constitution (1787) built its system closely on this idea. India's Constitution makers borrowed the idea but did not adopt a rigid American-style split.

They chose a parliamentary system, taken from Britain, where the executive (ministers) comes from inside the legislature and is answerable to it.

Does the Constitution use the words "separation of powers"?

No. There is no single Article that defines it. Instead, the Constitution gives each branch its own job through separate provisions:

• Article 53 and Article 73: the executive power of the Union is with the President, and extends to matters on which Parliament can make laws.
• Article 74: a Council of Ministers headed by the Prime Minister aids and advises the President.
• Article 79: Parliament consists of the President, the Lok Sabha and the Rajya Sabha.
• Article 124: sets up the Supreme Court of India.
• Article 50 (a Directive Principle in Part IV): tells the State to separate the judiciary from the executive in the public services of the State. Like all Directive Principles, it cannot be enforced in a court, but it shows the Constitution's intention.

How does each branch stay out of the other's core area?

The Constitution has specific walls between the branches:

• Article 121: Parliament cannot discuss the conduct of a Supreme Court or High Court judge in the discharge of duties, except when a motion to remove that judge is being considered. Article 211 is the same rule for state legislatures.
• Article 122: courts cannot question the validity of proceedings in Parliament just because of a procedural irregularity. Article 212 is the same rule for state legislatures.
• Articles 105 and 194: give MPs and MLAs special rights (privileges), such as freedom of speech inside the House, so they can work without fear of court cases over what they say there.
• Article 361: the President and Governors are not answerable to any court for the exercise of their official powers.
• Judges' security of service: a Supreme Court judge can be removed only by an order of the President after each House of Parliament passes an address by a special majority, on the ground of proved misbehaviour or incapacity (Article 124(4)). Judges' salaries cannot be reduced to their disadvantage after appointment, except during a financial emergency.

How do the branches check one another?

The separation in India is not absolute. Each branch has some tools to keep the others in balance:

• Judiciary over the legislature and executive: through judicial review, courts can strike down a law or an executive action that goes against the Constitution (based on Articles 13, 32 and 226).
• Legislature over the executive: the Council of Ministers is collectively responsible to the Lok Sabha (Article 75(3)). Parliament can question ministers, debate policies and pass a no-confidence motion.
• Legislature over the judiciary: Parliament can remove judges through the special removal process and makes laws on matters like the number of judges.
• Executive over the judiciary: the President appoints judges (today on the recommendation of the Supreme Court collegium).
• Overlap of roles: the executive can make law for a short time through ordinances (Article 123 for the President, Article 213 for Governors), and courts make rules for their own working (Article 145).

What have the courts said?

The Supreme Court has shaped the doctrine through several cases:

• Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955): the Court said the Indian Constitution does not follow separation of powers in its absolute rigidity. But the functions of each branch are clearly enough marked, so one branch should not take over the essential functions of another.
• Kesavananda Bharati v. State of Kerala (1973): the Court held that Parliament can amend the Constitution but cannot destroy its "basic structure". Several judges listed separation of powers among its basic features.
• Indira Nehru Gandhi v. Raj Narain (1975): the Court struck down clause (4) of Article 329A, which had placed an election dispute about the Prime Minister beyond the reach of courts. It held that judicial review, separation of powers and free and fair elections are part of the basic structure.
• Supreme Court Advocates-on-Record Association v. Union of India (2015), the NJAC case: on 16 October 2015, a five-judge bench, by a 4:1 majority, struck down the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments Commission Act, 2014. It held that independence of the judiciary is part of the basic structure, and that giving the executive a strong role in appointing judges would weaken it.

When can the Supreme Court give advice before a law is challenged?

There is only one formal door for this. Under Article 143, the President can refer a question of law or fact of public importance to the Supreme Court for its opinion. The Court "may" give its opinion; it is not bound to. Under Article 145(3), such a reference must be heard by at least five judges.

The first reference was the Delhi Laws Act case (1951). The Court has also refused to answer when it felt answering served no useful purpose, as in the Ayodhya reference decided in Ismail Faruqui (1994). An informal chat between a parliamentary committee and judges is not part of this process. In the United States, judges refuse to give any advisory opinions at all.

This rule goes back to 1793, when the US Supreme Court declined to answer legal questions sent on behalf of President George Washington.

Commonly confused concepts

• Separation of powers vs checks and balances: separation means each branch has its own job. Checks and balances means each branch can limit the others. India has both: a flexible separation, plus checks.
• Separation of powers vs federalism: separation of powers divides power horizontally, among the legislature, executive and judiciary at the same level. Federalism divides power vertically, between the Union and the states (Seventh Schedule lists).
• Article 50 vs Article 121: Article 50 is a Directive Principle asking the State to keep the judiciary separate from the executive. Article 121 is an enforceable rule that stops Parliament from discussing a judge's conduct, except during removal.
• Article 121 vs Article 122: Article 121 protects judges from discussion in Parliament. Article 122 protects Parliament's proceedings from questioning in court on procedural grounds. Each is a wall in the opposite direction.
• Judicial review vs judicial activism vs judicial overreach: judicial review is the Court's constitutional power to check laws and actions. Judicial activism is when courts use this power actively to protect rights, for example through public interest litigation. Judicial overreach is a criticism used when courts are seen to step into policy-making that belongs to the legislature or executive.
• Advisory opinion (Article 143) vs judgment: an advisory opinion answers a question referred by the President and is not a decision in a dispute between parties. A judgment decides an actual case.

Issues, criticism and the way forward

• Executive dominance of the legislature: in a parliamentary system, a government with a large majority can control Parliament's agenda. Critics argue this weakens Parliament's check on the executive, for example when Bills are passed with little debate.
• Judicial overreach: some argue courts sometimes frame policy, such as setting guidelines where no law exists. Others reply that courts step in only when the other branches fail to protect rights. In Divisional Manager, Aravali Golf Course v. Chander Haas (2007), the Supreme Court itself warned judges to show restraint and not run the government.
• Appointment of judges: the collegium system gives judges the main say in choosing judges. Supporters say this protects independence. Critics point to a lack of transparency. The NJAC case shows how sharp this debate is.
• Contact between branches: the branches must cooperate on things like court infrastructure and legal aid. The difficulty is drawing a line: discussing the running of courts is accepted, but discussing whether a pending Bill is good or valid can compromise the Court's neutrality if the law is later challenged.
• Way forward: experts commonly suggest clear conventions for interaction between Parliament and the judiciary, stronger committee scrutiny of Bills using outside experts (including retired judges), more transparency in judicial appointments, and self-restraint by each branch within its own constitutional space.

Concepts to Know

• Judicial review: the power of courts to check whether a law or government action follows the Constitution, and to strike it down if it does not.
• Basic structure: a doctrine created by the Supreme Court in 1973. It says Parliament can amend the Constitution but cannot change its core features, such as democracy, secularism, judicial review and separation of powers.
• Directive Principles of State Policy (DPSPs): guidelines in Part IV of the Constitution (Articles 36 to 51) for the government to follow while making policies. Courts cannot enforce them.
• Ordinance: a temporary law issued by the President or a Governor when the legislature is not in session. It must be approved by the legislature within six weeks of it meeting again, or it stops working.
• Collegium: a group of the senior-most judges of the Supreme Court (headed by the Chief Justice of India) that recommends names for appointment and transfer of judges.
• Special majority (for removing a judge): a majority of the total membership of the House, and also two-thirds of the members present and voting. For example, in a House of 540 members with 450 present and voting, at least 300 must vote yes (more than half of 540 = 271, and two-thirds of 450 = 300).
• Reference (under Article 143): a "reference" simply means a question formally sent by the President to the Supreme Court for its opinion.