Subject: Separation of Powers

SoP is derived from Montesquieu’s Spirit of Laws (1748) – dividing state power into Legislature, Executive, Judiciary to prevent concentration and arbitrariness.

Separation of Powers in the Constitution

Article 50 – Separation of executive and judiciary (Directive Principle).

Articles 122 & 212 – Courts not to question proceedings of Parliament and State Legislatures.

Articles 121 & 211 – Conduct of judges cannot be discussed in Parliament or State Legislatures (except during impeachment).

Article 361 – President and Governors enjoy immunity; not answerable to courts for exercise of powers and duties.

However, Strict Separation Does Not Exist due to

Legislature & Executive Overlap – Executive is drawn from the legislature (Art. 74 & 75; Art. 163 & 164).

Delegated Legislation – Legislature delegates rule-making powers to executive authorities.

Judicial Functions of Legislature in cases of breach of privilege or impeachment of judges.

Judicial Functions of Executive – pardons and commutations (Art. 72 & 161) by President and Governors.

Checks and Balances in Practice

Judicial Review – Judiciary can strike down unconstitutional laws and executive actions. Eg – NJAC Judgment.

Legislative Control over Executive via questions, motions, and no-confidence votes.

Executive’s Role in appointment of judges through the collegium system consultation.

Judiciary review of laws for conformity with Fundamental Rights and Basic Structure. Eg – Indira Gandhi v. Raj Narain (1975).

Legislative control over judiciary – Eg- 2018 Amendments to Atrocities Act, Impeachment Motions

“Power corrupts, and absolute power corrupts absolutely.” – Lord Acton
Thus, checks and balances are essential to prevent tyranny and preserve democracy.

Judicial independence refers to the freedom of judges from external pressures – political, or popular – enabling them to uphold the Constitution and rule of law without fear or favour.

Constitutional Guarantee of Judicial Independence

Separation of Powers (Article 50) – Directive to separate judiciary from the executive.

Security of Tenure (Articles 124(4), 217) – Judges can be removed only through impeachment.

Financial Autonomy (Article 112, 125) – Judicial salaries and pensions are charged on the Consolidated Fund.

Appointment Process (Articles 124-147) – The Collegium system, evolved through Second Judges Case (1993), protects against executive dominance.

Power of Judicial Review (Articles 13, 32, 226) – Enables courts to strike down unconstitutional laws or actions.

Contempt of Court Powers (Article 129, 215) – Protects the dignity and authority of courts.

Judicial independence as a prerequisite of democracy

An independent judiciary safeguards rule of law over rule by power, ensuring that all state actions remain within constitutional limits.

Courts act as guardians of the Constitution by protecting citizens’ fundamental rights from legislative or executive encroachment. Eg- Shreya Singhal case invalidating Section 66A of IT Act

Maintains Separation of Powers and prevents concentration of power.

In a democracy based on constitutional supremacy, courts act as a bulwark against populist or authoritarian tendencies. Eg- Basic Structure Doctrine.

Ensures Accountability of the Government through judicial review (Articles 13, 32, 226). Eg- NJAC Judgment

Upholds Constitutional Morality by progressive interpretation of laws. Eg- Sabrimala Verdict

Prevents Executive Overreach – Independent courts can strike down arbitrary laws or actions (Indira Gandhi v. Raj Narain, 1975).

Ensures Peaceful Resolution of Disputes – A credible judiciary provides non-violent conflict resolution, strengthening democratic stability.

“There is no better test of the excellence of government than the working of its judicial system.” – Lord Bryce