This article is written by YASHVERMA during his internship with LeDroit India.
Introduction
The doctrine of separation of powers holds that the powers of governance must be divided among three distinct branches—legislature, executive, and judiciary—to prevent concentration and abuse of power. While this principle is rigidly applied in the United States, India follows a more flexible model suited to its parliamentary democracy.
Structure of Government in India
India’s Constitution clearly outlines the functions of the three branches:
– Legislature (Parliament): Enacts laws.
– Executive (President, PM, Council of Ministers): Implements laws and runs the administration.
– Judiciary (Supreme Court and other courts): Interprets laws and ensures justice.
Though distinct in function, the branches are not completely independent, reflecting a functional overlap.
Constitutional Provisions
Key Articles that reflect separation or overlap include:
– Article 50: Directive Principle to separate judiciary from executive.
– Articles 53 & 154: Vest executive power in the President/Governor.
– Articles 121 & 211: Immunity of legislative proceedings.
– Article 123: Ordinance-making power of the President.
– Articles 124–147: Judiciary provisions, including judicial appointments.
– Articles 13, 32 & 226: Judicial review mechanisms.
The Constitution contains many provisions that reflect the intended separation (and necessary blending) of powers:
Directive Principles & Article 50: Article 50, a Directive Principle, directs the State to “take steps to separate the judiciary from the executive in the public services”. This mandates structural separation in administration, though as a Directive it is not enforceable by courts.
Vestiture of Power (Articles 53, 154): Articles 53(1) and 154(1) vest “all executive powers” of the Union and the States respectively in the President and Governors. This aligns the executive with the Constitution, subject to laws and oversight.
Legislative Proceedings (Articles 121, 211, 122, 212): Articles 121–122 and 211–212 shield legislative proceedings from judicial review: courts cannot question the validity of anything said or done in Parliament or State Legislatures. In effect, debates and procedural actions of the legislature are immune from court interference, preserving legislative autonomy.
Council of Ministers (Arts. 74–75): Articles 74–75 require the President (Governor) to act on the advice of the Council of Ministers headed by the Prime Minister (Chief Minister). This enshrines parliamentary responsibility, linking the executive to the legislature.
Ordinance Power (Art. 123, 213): Articles 123 (Union) and 213 (States) allow the President (Governor) to promulgate ordinances when Parliament (or the State Legislature) is not in session. An ordinance has the force of law until ratified. This is an example of executive law-making authorized by the Constitution – a functional overlap of powers.
Judicial Appointments and Removal (Arts. 124–147): The Constitution provides that judges of the Supreme Court and High Courts are appointed by the executive (President/Governor) in consultation with the judiciary (Art. 124, 217). Judges can be removed by the President (Governor) only after a special parliamentary procedure (impeachment by a majority of each House). This shows a balance: the executive makes appointments (with advice of judges) but cannot remove judges except by legislative action.
Judicial Review (Arts. 13, 32, 226): Article 13 declares that any law inconsistent with Part III (fundamental rights) is void. Article 32 gives every citizen the right to move the Supreme Court for enforcement of fundamental rights. Article 226 gives High Courts power to issue writs. Together these empower the judiciary to check both legislative and executive excesses.
Finance and Appropriations (Arts. 112–115, 116): No money can be withdrawn from the Consolidated Fund except by appropriation law passed by Parliament (Art. 114). The President’s (Governor’s) budget speech and appropriation bills are subject to parliamentary debate and approval. This ensures legislative control over public finances – a check on the executive.
Emergency Powers (Arts. 352–360): The Constitution gives special powers during emergencies, but these are subject to parliamentary ratification (Art. 352(6)). Even under emergencies, fundamental rights (Article 358–359) are not entirely abrogated, illustrating structural limits.
Miscellaneous Checks: For example, Article 143 allows the President to refer questions of law or fact to the Supreme Court for advisory opinions. Article 161 and 72 give Governors/President clemency powers (pardon, reprieve), checking judicial sentences in certain cases. Conversely, Article 263 permits the President to set up an Inter-State Council for resolving legislative/administrative disputes between states, which balances federal powers.
In sum, the Constitution lays out a framework where each branch has distinct spheres but also some crossing of functions. Articles like 50 and 53–54 suggest separation, while provisions for ordinances, counsel responsibility, judicial review, etc. show how overlap is constitutionally authorized.
Landmark Judgments
– Rai Sahib Ram Jawaya Kapur (1955): India follows a flexible separation of powers.
– Kesavananda Bharati (1973): Separation of powers is part of the basic structure.
– Indira Nehru Gandhi v. Raj Narain (1975): Reinforced judicial review and balance.
– NJAC Case (2016): Declared judicial primacy in appointments; reinforced basic structure.
Checks and Balances
The Indian Constitution ensures mutual control:
– Legislature over Executive: Through no-confidence motion, budget approval.
– Executive over Legislature: Ordinance power, veto.
– Judiciary over both: Judicial review.
– Executive over Judiciary: Judicial appointments, clemency powers.
Comparative Perspective
India’s model is a hybrid:
– US: Strict separation, independent branches.
– UK: Parliamentary supremacy, fusion of powers.
– India: Parliamentary democracy with written constitution and empowered judiciary; flexible separation with accountability.
Criticism and Limitations
Concerns include:
– Executive dominance (especially under single-party rule).
– Judicial activism or overreach.
– Blurred boundaries between functions.
– Delay in reforms like full separation of lower judiciary from executive.
Landmark Judicial Interpretations
The Supreme Court of India has repeatedly interpreted how (and how far) the separation of powers applies in India. Key cases include:
Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955): This early case held that India did not have a rigid separation of powers. Justice Mukherjee observed that “the Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity, but the functions of the different parts… have been sufficiently differentiated…”. In other words, the branches have distinct roles, but overlap (e.g. delegation of legislative power to the executive) is constitutionally tolerated so long as one organ does not usurp another’s core functions.
Kesavananda Bharati v. State of Kerala (1973): The landmark Basic Structure case recognized that separation of powers is one of the Constitution’s basic features. The thirteen-judge bench held that Parliament’s power to amend (Art. 368) cannot destroy fundamental aspects like judicial review and the separation of powers. Chief Justice Sikri’s majority opinion specifically listed “separation of powers between the legislature, executive and the judiciary” as part of the Constitution’s essential framework. Thus, an amendment violating this structural principle would be void.
Indira Nehru Gandhi v. Raj Narain (1975): In the famous election petition case, the Court reiterated basic-structure limits on Parliament. Justice Chandrachud (Maj.) noted that strict American-style separation is not a “magic formula” under our Constitution, but free and fair elections (and judicial review of election disputes) were held to be basic features. Notably, Justice M.H. Beg (Minority) emphasized that “supremacy of the Constitution and separation of powers” were basic features as understood in Kesavananda. In contrast, Chief Justice A.N. Ray’s minority opinion controversially asserted that Parliament’s constituent power is supreme and unaffected by separation concerns. The Indira judgment thus reaffirmed that separation is part of India’s constitutional structure, while allowing some flexibility in how powers overlap (the majority struck down only that portion of the 39th Amendment which ousted judicial review of the Prime Minister’s election)
Supreme Court Advocates-on-Record Assn. v. Union of India (2016) – the “NJAC” case: Striking down the National Judicial Appointments Commission, the Court explicitly declared that separation of powers is an essential feature of the basic structure. The Court held that separation in India “is not as rigid as in the US”, but must not be violated. Importantly, it ruled that some overlap of functions is permissible: “there is no violation…as soon as there is an overlap” – what matters is that one branch does not usurp another’s core domain. In particular, the power to appoint judges is intrinsic to the judiciary and cannot be impinged upon by the executive or legislature.
These and other cases (e.g. Waman Rao v. UOI (1981) on legislative limits, S.P. Gupta (1981) on judicial independence) have shaped India’s unique doctrine: the Constitution demands a balance but not a wall between powers. Generally, the courts have upheld the system of checks and balances while allowing practical cooperation.
Checks and Balances in Practice
India’s Constitution embeds multiple checks and balances so that each branch can restrain the others:
Legislature over Executive: Parliament controls the executive through confidence motions, Question Hour and committees. It must approve all government spending (budget). It can impeach the President or remove judges (Art. 61, 124). Indeed, the Council of Ministers must retain the Lok Sabha’s confidence or face removal (Art. 75).
Executive over Legislature: The President can summon, prorogue or dissolve Parliament (Arts. 85–86) and must assent to bills to make them law. He has limited veto powers: an absolute veto on private bills, a suspensive veto on ordinary bills (he can return bills once for reconsideration) and a “pocket veto” (no action) on money bills. When Parliament is not in session, the President/Governor can promulgate ordinances (Art. 123/213), subject to later approval. Thus, the executive can delay or initiate legislation, but not permanently override the elected legislature’s will.
Legislature over Judiciary: Parliament prescribes the number of Supreme Court judges (Art. 124), and can remove them by impeachment (Art. 124). It can limit judicial remedies by law (subject to fundamental rights) and has power to amend even laws struck down by courts (though not to damage basic structure). For example, after courts invalidated certain laws, Parliament has tried (and sometimes succeeded) to re-enact or validate them. However, no Act can shield itself from judicial review on substantive grounds (Art. 368 provides amending power, but Kesavananda means basic features are unamendable). Parliament also cannot curtail fundamental rights or judicial review in general (Art. 13).
Judiciary over Legislature/Executive: Courts can strike down any legislative or executive action that violates the Constitution (Art. 13). Through writ jurisdiction (Arts. 32, 226) they protect individual rights against state action. The Supreme Court’s power under Art. 142 (to do “complete justice”) can override statutory constraints if necessary. For example, courts have invalidated laws (e.g. Naz Foundation, Sabarimala), restricted executive action (preventing enforcement of unlawful rules), and declared portions of constitutional amendments void (Indira Nehru Gandhi). Thus judicial review is a potent check.
Executive over Judiciary: The President (Governor) appoints judges (Art. 124, 217) and can remove them (only by parliamentary process). Article 145 empowers the President (in consultation) to regulate Supreme Court procedure. Importantly, the executive also has clemency powers: under Art. 72 (President) and Art. 161 (Governor) it can pardon or commute sentences, providing relief against judicial errors.
Mutual Restraints: The Constitution itself imposes limits: no branch can bypass constitutional requirements (e.g. money bills cannot originate in the executive alone; Parliament can only legislate within its subjects). Articles 122–212 (privilege clauses) prevent courts from intervening in purely legislative matters. Conversely, courts have ruled that doctrine of separation does not preclude one branch’s incidental actions (as long as core functions are intact).
In sum, India’s system ensures that each organ is constitutionally beholden to the others. Parliamentary oversight, executive sanction, and judicial review create a web of accountability. As one author notes, this “cross-functioning fosters better cooperation and supports the principles of checks and balances, enabling one organ to review and influence the actions of the other organs, thus preventing any one organ from wielding too much power”.
Comparative Perspective (India vs. US/UK)
India’s model is a hybrid. It is closer to the British Westminster system but includes strong written-charter elements from the US:
United States: The U.S. Constitution (1787) implements a rigid separation of powers. Congress (legislative), the President (executive) and the Supreme Court (judiciary) are elected/appointed independently (Articles I–III). Neither the President nor any executive official sits in Congress – “neither the President nor any member of the executive is a member of Congress”. The President serves a fixed term and cannot dissolve the legislature. Congress has checks on the President (impeachment, overriding veto, advice and consent on appointments) and vice versa (veto power, commander-in-chief). By contrast, in India the Prime Minister and Cabinet must command Parliament’s support, and the Prime Minister can ask the President to dissolve the Lok Sabha (Art. 85). Thus India’s parliamentary executive is inherently fused with the legislature, unlike the U.S. system. U.S. courts have final say on constitutional questions (judicial review), similar to India, but the U.S. has no written basic structure constraint – Congress has broad amendment powers (subject only to procedural rules and equal protection).
United Kingdom: The UK has no written constitution and operates a parliamentary system with fusion of powers. The Crown (King/Queen) is formally head of state and part of Parliament; the Prime Minister and all ministers are members of either the House of Commons or Lords. The doctrine of strict separation was never accepted in Britain: as one commentator notes, “the King is the executive head as well as an integral part of the legislature. All ministers are members of… Parliament”. Historically, the Lord Chancellor even served as head of judiciary, presided over the House of Lords (legislature), and sat in Cabinet (executive). Thus power is “integrated” rather than separated. Judicial review in the UK is limited – Parliament is sovereign, so British courts cannot strike down Acts of Parliament (unlike in India). In short, India adopted the British parliamentary form (e.g. Cabinet responsibility to legislature) but grafted on a rigid written constitution and an empowered judiciary (a la the U.S.).
India’s Unique Mix: India’s Constitution melds federalism and a written charter with Westminster practices. The President is a constitutional head (unlike the hereditary sovereign) and is bound by the Constitution’s provisions (unlike the UK monarch). Fundamental rights and judicial review check legislative authority (unlike UK’s parliamentary supremacy). Yet, like Britain, India allows overlap: ministers in Parliament, no separate separation of heads. A judge of the Supreme Court once observed that India’s system is “broadly similar to” Britain’s, with “executive…dependent on the confidence of the legislature”. In American terms, separation in India is “limited”: powers are “sufficiently differentiated” but not wielded by wholly distinct offices.
Overall, India’s model differs significantly from the pure U.S. or British schemes. It adopts a parliamentary-federal structure: separation of powers in principle, but flexible in practice to suit Indian needs.
Critiques and Limitations
The effectiveness of separation of powers in India is debated. Supporters argue that India’s flexible approach promotes co‐operation and efficiency, but critics point to several limitations:
Blurry Boundaries: Because India deliberately rejected rigid separation, there are many functional overlaps. This can blur accountability. One commentator notes that the “lack of clear demarcation” between branches invites conflicts, since each may claim some authority in gray areas. For example, when a Union minister is a powerful legislator, or when courts make policy through broad interpretations, critics say it undermines discipline.
Executive Dominance: India’s dominant-party politics often means the executive (cabinet/PM) dominates Parliament. When one party controls the Lok Sabha, legislative oversight can be weak. Critics charge that “concentration of power in the executive (particularly the Prime Minister’s Office)” erodes checks and balances. Frequent use of ordinances and the whip system in Parliament are cited as examples.
Judicial Overreach: Conversely, others contend that the judiciary sometimes exceeds its role. The executive and legislature have complained of “judicial activism,” where courts decide issues they view as policy matters. For instance, in 2025 India’s Vice President warned that if judges “act as super Parliament” (by directing the President or delaying laws under Article 142) it amounts to an “erosion” of the separation of powers. He lamented encroachments by one branch into another’s “domain,” arguing such incursions “destabilise the entire system”. This critique highlights a tension: a powerful Supreme Court (as custodian of rights) may be seen as counter-majoritarian by political leaders.
Other Factors: Unused legislative tools (like impeachment), delays in appointing judges, and inconsistent implementation of some provisions (e.g. separation of judicial services as per Article 50) have also been noted. One study argues that India’s arrangement is a compromise: “[s]eparation of powers is not applied in India with doctrinal rigidity,” but is intended to “maintain accountability and prevent abuse of power”. In practice, this means the system relies heavily on conventions and political culture. When one party dominates (e.g. single‐party majorities in the Lok Sabha), informal checks (opposition, public opinion) become more critical.
Despite criticisms, many scholars accept that some overlap is inevitable in modern governance. As one analysis concludes, India’s Constitution “ensures a functional division with checks and balances…This flexible approach allows for coordination and efficiency in governance while safeguarding democracy and fundamental rights”. In other words, while India’s separation of powers is not absolute, its spirit – division of functions and mutual control – remains central. The challenge is maintaining that balance: preventing overreach by any branch while ensuring the government can still function effectively.
Sources: Indian constitutional provisions and landmark cases, and scholarly commentaries.
Conclusion
India’s Constitution embraces a pragmatic and functional separation of powers. While not absolute, this doctrine—backed by judicial interpretation—serves as a bulwark against tyranny and inefficiency. The challenge remains to preserve this balance through responsible governance, judicial restraint, and legislative oversight.
