Author: Kumari Anushka Srivastava
Lloyd Law college
Meaning of separation of powers
Separation of powers is a fundamental principle that divides state authority and responsibilities into distinct and independent branches typically the legislative (the one who makes the law), executive (one who implements the law), and the judiciary (the one who interprets the law). Basically, it talks about the functioning of the government and their separation into three separate branches, and which do not interchange their functions. Creating a distributed power rather than concentrated power, as the concentration of power gives way into misuse and corruption.
Different philosophers define this principle differently. Wade and Philip outlined three key elements that form the concept of separation of powers.
that one branch of government should not exert control over or interfere with another, such as the judiciary is separate from that of executive branch or when ministers are not answerable to parliament;
that one branch should not carry out the duties of another, such as giving ministers legislative authority;
That a single individual should not hold positions across more than one branch of government, for example, ministers serving simultaneously in Parliament.
Richard Benwell and Oonagh Gay describe separation of powers as the principle that the key institutions of the state must operate independently from one another, ensuring that no single person holds authority in multiple branches of government.
MONTESQUIEU THEORY ON SEPERATION OF POWER
The theory of separation of powers was initiated by Charles De Montesquieu in his book “Espirit des lois”(the spirit of laws), published in the year 1785. In his book he articulated the fact that when the powers are constrained onto one hand or a group of people leads to government’s arbitrary nature and that it can be removed by distributing powers into three organs of government, the executive, legislative and judiciary.
He is believer in supremacy off political liberty. To prevent abuse of power the model of checks and balances has to instilled in state. Hence, he proposed the separation of powers along with a system of checks and balances to prevent the abuse of authority.
THREE ORGANS OF SEPERATION OF POWERS
The principle of separation of power bifurcates the governmental authority into three distinct organs or branches, each with specific function and responsibilities this system ensures that no single institution wields absolute power.
LEGISLATIVE ORGAN
The legislature is the organ of government responsible for making of laws. The Indian Constitution empowers parliament to make laws which reflects the will of the state and underpins the autonomy of the government. In layman language, it is the agency which is responsible to formulates law.
Article 246 of Constitution of India empowers the union and state legislature to compose laws on specified subjects (like the union list or the state list ot the concurrent list which have the subjects mentioned and their powers to legislate).
The parliament shall consist of president, house of people and the council of states (Article 79). Similarly, the state legislature shall consist of the governor, state legislative and legislative council (Article 168). Article 84 lays down eligibility on who can participate in law making process.
Moving further the members of parliament are given a few privileges and immunities that can be seen under Article 105, privileges which are enjoyed when inside the parliament and done in lieu of parliamentary proceedings.
Further Articles from 107 to 114 lays the Constitutional procedure for law making and control of public finances by the legislature. These Articles clearly demarcate the domain of legislature and prevent any interferences from the other two branches. These Articles collectively maintain the checks and balances system ensuring that no law is drafted without the legislative.
Thus, one clearly cans ee that the Constitution of India has clearly laid a frame where the legislature is responsible for the law-making process and free from the executive or judiciary interference. By empowering Parliament and State Legislatures to enact laws, and by providing procedural safeguards and privileges, the Constitution preserves the separation of powers and upholds the democratic principle of checks and balances.
EXECUTIVE ORGAN
The Executive is the branch of government tasked with implementing and administering laws passed by the Legislature. Its main function is to ensure effective enforcement of these laws and to manage public affairs in line with constitutional provisions. The Executive is central to translating legislative decisions into action, maintaining law and order, and providing essential public services.
With the President as the head of the executive is supported by the council of ministers, who are headed by the prime minister. Chapter I of Part V of the Constitution mentions about the executive branch of the government. President acts as the Constitutional figurehead. The executive is kept separate from the other organs of the government by providing them authority which is clearly defined in Constitution along with their election, term, and impeachment of president described under the Articles 54 to 61.
Article 74 stipulates that the President shall act according to the aid and advice of the Council of Ministers, led by the Prime Minister, demonstrating the fusion of powers between the Legislature and Executive in India’s parliamentary system while keeping the Executive separate from the Judiciary. Article 75 provides that the Council of Ministers is collectively responsible to the Lok Sabha, ensuring accountability to the Legislature. At the state level, Articles 163 and 166 designate the Governor as the constitutional head who acts on the aid and advice of the Council of Ministers and regulate the conduct of state executive business, thereby preserving a clear separation of powers among the Executive, Legislature, and Judiciary.
JUDICIARY ORGAN
The judiciary is a constitutional body tasked with interpreting laws, settling legal disputes, and protecting the Constitution. Acting like the guardian of Constitution, judiciary. The foundation of Indian democracy is the judiciary, which upholds Constitutional ideals, ensures justice, and keeps the three institutions of government in balance of power. It interprets laws, protects basic rights, and serves as a check on executive and parliamentary excess in its capacity as the custodian of the Constitution.
The Indian legal system is organized in a hierarchical structure, starting from lower courts and ascending to the Supreme Court, which serves as the highest authority. Every court has the responsibility to resolve disputes within its designated area of jurisdiction.
Article 124 establishes Supreme Court as highest judicial authority, separate from legislature and executive. The next few Articles safeguard the independence and effective functioning of the Supreme Court by providing them financial security, continuity in judiciary activities (Articles 126 to 128).
Similarly, Article 214 establishing the high courts for judicial activities at state level The Constitution ensures High Court independence through Articles 217–227. Judges are appointed by the President in consultation with the Chief Justice of India and Governor (Art. 217), take an oath of office (Art. 218), and have secure salaries (Art. 221). Transfers are allowed with consultation (Art. 222). High Courts can issue writs (Art. 226) and supervise lower courts (Art. 227), providing checks on the Executive and maintaining judicial accountability and uniformity.
To strengthen the separation of judiciary, Articles 141–143 empower the Supreme Court to function independently. Article 141 makes its law binding on all courts, Article 142 allows it to enforce judgments nationwide, and Article 143 lets the President seek its opinion on important legal questions. Together, these provisions ensure judicial authority and uphold the separation of powers.
In the Judges’ Case (Supreme Court Advocates-on-Record Association v. Union of India, 1993), the Supreme Court held that judicial appointments must remain independent of the Executive, establishing the Collegium system to safeguard judicial autonomy. This reinforced the separation of powers by limiting Executive control over the Judiciary.
INTERCONNECTION OF LEGISLATURE WITH EXECUTIVE AND JUDICIARY
Though the Legislature, Executive, and Judiciary are separate organs with distinct functions, their roles often overlap in practice to ensure coordination, accountability, and effective governance within the framework of the Constitution.
At times the functions of legislature overlap with other organs. These can be understood by list below:
Many members of the Executive (Council of Ministers) are elected Members of Parliament, showing fusion of powers.
The Executive (Council of Ministers), headed by the Prime Minister, is responsible for implementing laws made by the Legislature.
No bill becomes law without the prior consent of president, who is the head of executive.
The removal of a Supreme Court judge requires the approval of both Houses of Parliament as well as the President, as per Article 124(4).
High Court judge is appointed by the President through a warrant under his hand and seal, based on the recommendations of the NJAC or Collegium system, in accordance with Article 217(1).
The council of ministers consisting of elected members of the legislature advises the president and governor.
Laws passed by the legislature are subject to judicial review.
The legislature holds the executive accountable through mechanisms such as the no confidence motion and budget approval.
Ordinance making power lays with the president and the governor. The President (Executive Head) can promulgate Ordinances when Parliament is not in session, which have the force of law (Article 123). Article 213 empowers the Governor (Executive Head at State Level) to promulgate Ordinances when the State Legislature is not in session.
The impeachment of president as per Article 61 is done by the parliament.
The annual financial statement (budget)is presented by the executives to the legislatures.
The president at times can take advice of the Supreme Court.
In Joseph Shine v. Union of India (2018), the Supreme Court invalidated Section 497 IPC on the ground that it violated Articles 14, 15, and 21 of the Constitution, thereby upholding the principle of separation of powers by exercising independent judicial review and preventing arbitrary legislative action.
CONCLUSION
The doctrine of separation of powers is a fundamental constitutional principle designed to prevent the concentration of authority in any single branch of government. It ensures that the Legislature, Executive, and Judiciary operate independently, each with clearly defined responsibilities: the Legislature enacts laws, the Executive implements them, and the Judiciary interprets and protects them.
However, in practice, absolute separation is neither possible nor desirable in a parliamentary democracy like India. The Constitution wisely provides for necessary interconnections between these organs to ensure accountability, effective governance, and smooth functioning of the state machinery. For example, ministers are members of the Legislature, the President (head of the Executive) gives assent to bills, and judicial review allows courts to examine the validity of laws and executive actions.
The Judges’ Case (1993) reinforced judicial independence by preventing executive interference in judicial appointments through the Collegium system. Likewise, Joseph Shine v. Union of India (2018) demonstrated the Judiciary’s role in checking arbitrary legislative action by striking down unConstitutional provisions of law.
These Constitutional checks and interconnections do not dilute the doctrine of separation of powers but instead strengthen democracy by preventing abuse, promoting transparency, and ensuring that no organ becomes supreme. The Indian Constitution creates a balance where separation of powers and checks and balances coexist, thereby maintaining the rule of law and protecting individual freedoms in a dynamic democratic system.
FAQS
What is the meaning of separation of powers?
Separation of powers is a constitutional principle that allocates the government’s authority and functions among three distinct branches — the Legislature (responsible for making laws), the Executive (responsible for implementing laws), and the Judiciary (responsible for interpreting laws) — to prevent the concentration of power and maintain a system of checks and balances.
Can the Executive make laws in India?
Yes, in special situations, the Executive (President or Governor) can promulgate Ordinances under Articles 123 and 213 when the Legislature is not in session. However, these Ordinances are temporary and must be approved by the Legislature within a specific time frame, ensuring legislative oversight.
How is the independence of the Judiciary protected in India?
Judicial independence is ensured by Constitutional provisions such as security of tenure, fixed salaries (Article 221 for High Court judges), and appointments through a Collegium system, preventing direct executive interference in the appointment or removal of judges.
Who has the authority to remove a judge of the Supreme Court or High Court in India?
A Supreme Court judge can only be removed by a process of impeachment under Article 124(4), which requires a special majority in both Houses of Parliament and the President’s assent. High Court judges can also be removed in a similar procedure.
What role does the President play in the law-making process?
The President gives assent to Bills passed by Parliament before they become laws. Without the President’s assent, a Bill does not become law, highlighting the interconnection between Legislature and Executive.
