Crisis of Separation of Powers in India; Legislative Influence on Judiciary

                                                               Krisham Singh and Sharmeen Saud


The present article is an effort to examine the plan of Separation of Power as envisaged under the Indian Constitution and the obstacles faced by the three sections of the Government in practice while executing the provisions of the Constitution in letter and spirit. The main objective of our Constitution, declared by our founding father, in its preamble is to provide a state system oriented and dedicated to public welfare. For achieving this objective, the Constitution has made three organs- the Legislature, the Executive and the Judiciary. Separation of power is important in encouraging consistency and biasness in the implementation of sanction. In India, there is not any well-defined illustration of the doctrine in the Constitution but we have followed it whenever is needed and it is been clear on seeing various judgments given by Supreme Court. In India, Judiciary is very powerful and constitutionally, legislature has less scope to interfere in its works, but this actually doesn’t happens as the provision of checks and balance provides an indirect access of the same. Present article is going to look into the potential of legislature to intervene into the jurisdiction of Supreme Court on the basis of the practice of checks and balance in terms of legislation and interpretation of the constitution. In this article we would also like to draw the attention on influence of legislature on judiciary on the ground of the practice of separation of power theory in Indian Polity based on the experience of seven decades.


The term ‘triaspolitica’ or Separation of Power’ was coined by Charles – Louise de Secondat, baronde La Brede et de Montesquieu, an 18th century French social and political philosopher.

The doctrine of Separation of Power observes the idea that the governmental function must be based on tripartite division of legislature, executive and judiciary. The three organs should be distinct, separate and sovereign in its own domain so that one does not interfere in the working of others. The doctrine of Separation of Power has exercised the minds of many people. Aristotle who first observed and saw that there is specialization of function in each constitution developed this doctrine. Later other theorists like Montesquieu, John Locke and James Harrington described these functions as Legislative, Executive and Judicial. Separation of Powers refers to the division of government responsibilities into different branches to restrict any one branch from exercising the main function of another. The motive is to prevent the concentration of power and provide for check and balance. Cooley emphasizes the importance of the doctrine of separation of power as:

“This arrangement gives each department a certain independence, which operates as a restraint upon such action of others as might encroach on the rights and liberties of the people, and makes it possible to establish and enforce guarantees against attempts at tyranny”.

This theory was adapted until certain duration under the constitution of U.S. giving judiciary a distinct place. The framers of the U.S. constitution have strictly stuck to doctrine of separation of power.

The framer of the Indian constitution did not consider the doctrine of Separation of power in an inflexible sense. The doctrine of separation of power has not been strictly applied on the Indian Constitution, like the American Constitution. It can’t be clearly seen but can be observed through the distinction made in the release of function by the different branches of the government in the constitution. This doctrine is not wholly and solely external to our constitution. As we review the fact of the past, same as representative jurisprudence like Ram Jawaya v. State of Punjab[1]clearly clarify this principle. Chief Justice Mukherjea in the current case said:

“It can very well be said that our constitution doesn’t contemplates assumptions, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way.”

Thus, it can be understood from the above that these organs of the government are allowed to exercise their function but with some restrictions. These restrictions are made in constitution and it also guarantees limitable invasion.

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On the Fundamental principle of Rules of Law the Constitution of India has been found. It must be remembered that the quality of supremacy of governance is decided on the touch stone of competence and strength of the judicial instrument.

The Legislature

The legislature has been given higher honour in Indian Constitution. It is mainly concerned with enactment of law that are applicable to all of its citizens and institutions. The Parliament is the Union Legislature of India comprising two bodies namely, RajyaSabha (upper house) and the Lok Sabha (lower house). It makes laws, imposes taxes, prepares and intimates the budgets and also has sole power to declare war, can start investigations, and sometimes also appoints judges[2]. To govern a country efficiently we need policies and laws. The function of the legislative is to form policies and laws that will govern the nation. The Union parliament is chiefly concerned with this function. Parliament of India ensures that the legislative functions of the Government are executed properly by passing relevant laws and making citizen friendly policies.

The Executive

Once the laws have been duly made and sanctioned, the duty of implementation falls on the executive body. The state governments and other relevant bodies are responsible for this function. Both the legislative and executive functions are interdependent functions of the parliament. It is said that Executive is an independent body but differences continue. It is completely excluded in actual practice due to the reason that every time executive is questioned for its action by the Judiciary and the Legislature. This alters the independence of the Executive[3].

The function of Executive is execution of laws and policies. The executive office consists of Prime Minister and his Cabinet at central level. At an administrative level, the civil servants have the responsibility of ensuring that all the policies introduced by the government are duly implemented and its benefits reach the people.

The Judiciary

Once the rules or laws have been made, now it’s the work of Judiciary to ensure that those who do not follow the rules are duly punished. It also acts as a conflict resolver for the government. In order to ensure justice and fairness, the judiciary can interpret laws but cannot make them. The Judiciary has been made independent of the other two functions. Thus, a court has the authority to try members of Parliament, members of the executive and citizens of the country, if it finds them guilty of any misdeed[4].

George Washington says: “Administration of Justice is the firmest pillar of the government. Law adjust to bind together the community; it is sovereign and can’t be violated with impunity.”

How Are Checks And Balances And Separation Of Powers Different?

Separation of Powers describes a way in which government is divided into three different branches (Legislative, Executive and Judiciary) whereas, checks and balances describe the powers each branch has to check the other branches and ensure a balance of power. The doctrine of separation of power is a part of the basic structure of the Indian constitution even though it is not specifically mentioned in it. Hence, no law and amendment can be passed in violation to it. The system of check and balances is essential for the proper functioning of three organs of the government[5].

We will understand this by some illustrations:

  1. Judiciary has the power to void laws passed by the parliament and can declare the unconstitutional Executive actions as void, as in Triple Talaq Case.
  2. Legislatures review the functioning of the executive.
  3. Legislative branch remove the judges, and in many other ways.

Checks and Balances acts in such a way that no organ of the state becomes too powerful. The Constitution of India makes sure that the discretionary power entrusted upon any organ of the state doesn’t violate the principles of democracy.

Is Separation Of Power Being Followed In The Way It Meant To Be?

On a random glimpse at the provisions of the Constitution of India, one may easily say that the doctrine of Separation of Powers is accepted in India. Parliament is competent to make any law to the provision of the constitution and there is no other limitation on it regarding law making. The Judiciary is Independent and there can be no interference either by legislature or the executive in judicial function. Some of the jurists are of the opinion that the doctrine of separation of power has been accepted in Indian Constitution whereas, if we study carefully, we get to know that the Separation Of Power has not been accepted in India in the sense it meant to be. There is not only functional overlapping but also personal overlapping[6].

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The Supreme Court has the power to declare void any law passed by the legislature which is not good for the society. The Executive affects the functioning of the Judiciary by making appointments to the office of Chief Justice and other judges.

Some of the articles on the Constitution of India which emphasizes the separation of powers are:

Article 50 puts an obligation over the state to separate the Judiciary from the Executive. However, it is not enforceable as it falls under DPSP (directive principles of state policy).

Under Article 121 & 211, the Legislatures can’t discuss the conduct of the Judge of the High Court or Supreme Court. They can interfere only in the matters of Impeachments.

Under Article 122 & 212, the court cannot inquire the validity of the proceeding of the legislatures.

Article 361 gives the Immunity to the President and Governor from court proceedings.

Judicial Appointments by Legislature

In the year of 2013, the Union Government introduced two bills to reform the process of judicial appointments in the Supreme Court and the High Court. The Constitution (120th amendment) Bill, 2013 and the Judicial Appointment Commission Bill, 2013 seek to enact a judicial appointments commission to appoint Judges to the Supreme Court and High Court.

The appointment of Judges to the Supreme and the High Court is under article 124(2) and article 217(1) of the Constitution of India, 1950.  In case of appointment for the Judges of Supreme Court, the President of India is required to consult with the CJI and in case of appointment of Judges of High Court, the President of India consults with the Governor and the Chief Justice of respective High Court.

The 120th Amendment introduced a new Article 124A to organize a Judicial Appointment Commission and bring that the arrangement composition and functioning of the JAC will be executed in an independent law by the Parliament. The Amendment administers the president to make appointments on the suggestion of the JAC.

The Supreme Court in S.P. Gupta v. President of India[7](1981) held that the executive would appoint the judges in consultation with the Chief Justice rather than in ‘concurrence’. Justice P.N. Bhagwati speaking for the majority stated that “The opinion of each of the three constitutional functionaries is entitled to equal weight and it is not possible to say that the opinion of the CJI must have primacy over the opinions of the other two constitutional functionaries[8]. If primacy were to be given to the opinion of the CJI, it would, in effect and substance, amount to concurrence, because giving primacy would mean that his opinion must prevail over that of the Chief Justice of the High Court and the Governor of the State, which means that the Central Government must accept his opinion. But as we pointed out earlier, it is only consultation and not concurrence of the CJI i.e. provided in Article 217(1).”

India is the only Constitutional democracy where the judiciary appoints its own judges. The worry about the current process of appointment is that it lacks accountability, merit-based criteria and diversity in composition. This process is not for the public analysis and the personal preferences have become a proxy criteria for judging merit. There is no interference of legislature and an executive in the appointment of Judges.

Crisis of Legislation over Judicial Recommendation

It goes without saying that the judiciary must be kept away from party politics and its independence can  be maintained to the extent to which that is done to the extent to which that is done. Consequently, it is contended that the legislature should not have the power to elect the Judges. Moreover, no member of a legislature should be eligible for a judicial office. However the Legislation may be given the power of recommending the removal of Judges even by the presentation of an address to the executive as is the case in England, or by means of impeachment, as in the US. This power is necessary to provide against those Judges who may abuse their power and receive presents or bribes.[9]

Article 122 of the Constitution of India provides that the Court shall not call validity of any proceedings in Parliament in question on the ground of any alleged irregularity of procedure and Article 212 provides that the Court should not enquire into the proceedings of the Legislature. But certain judicial inconsistency has been felt in the previous years, the most outstanding being the famous Jagdembika Pal v. Union of India[10] involving the Uttar Pradesh Assembly and the Jharkhand Party v. State of Jharkhand &ors.[11]The interim order of the Supreme Court in both the cases is a violation of the principle of separation of powers between the Judiciary and the Legislature. The Judiciary criticized the Legislature for not doing anything beneficial over the previous years, whereas Legislature attacked on Judiciary for doing the work of legislature. When Judiciary is not held answerable for the legislative functions then what is the authority behind the exercise of such powers?

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In Minerva Mills v. Union of India[12], Supreme Court held that the ‘Judicial review’, being a basic feature of the Constitutions, can’t be taken away by the Parliament by amendment of the constitution. Also there are many cases where the Judiciary has played the role of legislature by framing guidelines and policies. In 1983 when Justice Bhagwati introduced Public Interest Litigation in India, Justice Pathak in the same judgment warned against the “temptation of crossing into territory which properly pertains to the legislature or to the executive government”[13]. In 2007 Justice Katju said that, “Courts can’t create rights where none exist nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles.” In Commissioner of Customs v. Sayed Ali[14], imposition of some duties retrospectively by the Customs Amendment and Validation Bill, 2011 was challenged in the Supreme Court. The Supreme Court struck down the exercise of duties. In order to avoid that judgment, the Parliament passed Customs Bill, 2011 and amended the provisions to levy duties retrospectively even in those which was earlier struck down by the Supreme Court.

Another instance where Legislature overruled the decision was seen in Essential Commodities (amendment) Ordinance, 2009 which was passed into an act. In Mahalakshmi Mills v. Union of India[15] the Supreme Court said that the price at which the centre shall buy sugar from the mill would include the Statutory Minimum Price and an additional amount of profits that the mills share with farmers. The amendment allowed the centre to pay a fair and remunerative prize instead of SMP. In Vishakha & ors. v State of Rajasthan[16] the Supreme Court gave the guidelines on sexual harassment.

There are also many more cases where SC of India declared the law unconstitutional but Parliament did not make any Amendment regarding that unconstitutional law, for example-  in Triple Talak case[17]Supreme Court of India declared that Triple Talak i.e. talak-e-biddat is unconstitutional.


India has adopted a parliamentary system of government. The founding fathers of our Constitution bestowed upon us a true and real democracy by way of a representative form of government where the will of the people is important. As the doctrine of Separation of Powers is not codified in the constitution, there is a necessity that each pillar of the state evolves a healthy trend that respects the powers and responsibilities of other organs of government. Today in the era of globalization where everything has become so progressive and advance, the Constitution is enough to address and solve the problems of overlapping of power but different specific interpretations of the constitutional arrangement is required to be made.

[1] Ram Jawaya v. State of Punjab AIR 1955 SC 549.

[2] Bakshi, P.M., The Constitution of India (Universal Law Publishing Co. Pvt. Ltd., 2005).

[3] Bakshi, P.M., The Constitution of India (Universal Law Publishing Co. Pvt. Ltd., 2005).

[4] Jain, M.P., Indian Constitutional Law (5th ed.  Wadhwa and Co., Nagpur, 2005).

[5] Dr. Pandey, J.N., Constitutional Law of India (54th ed. Central Law Agency, 2017).

[6] Dr. Joshi K.C., The Constitutional Law of India (1st ed. Central Law Publications, 2011).

[7] S.P. Gupta v. President of India AIR 1982 SC 149.

[8] Shukla, V.N., Constitution of India (12th ed. Eastern Book Co., 2013).

[9] Mahajan, V.D., Political Theory (4th ed. S. Chand & Company ltd., 1988).

[10] Jagdembika Pal v. Union of India 1998 (2) SCALE 83.

[11] Jharkhand Party v. State of Jharkhand &ors. 2005 (2) BLJR 1559

[12] Minerva Mills v. Union of India AIR 1980 SC 1798.

[13] Bandhua Mukti Morcha AIR 1984 SC 802.

[14] Commissioner of Customs v. Sayed Ali (2011) 3 SCC 537.

[15] Mahalakshmi Mills v. Union of India (2009) 16 SCC 569.

[16] Vishakha and ors. v. State of Rajasthan (1997) 6 SCC 241.

[17] Shayara Bano v. Union of India (2017) 9 SCC 1.