This article has been written by Raksha Yadav, studying BBA.LL.B at ISBR Law College, Bangalore. The article describes Article 50 of the Indian Constitution in detail, which deals with the separation of the judiciary from the executive in public services.

This article has been published by Sneha Mahawar.

Introduction

India is a democratic country, and democracy has three organs, i.e., the legislative, executive, and judiciary. Every organ has its own powers and functions to perform. The legislature drafts the laws and ordinances, the executive implements those laws and ordinances, and the judiciary protects the laws and safeguards the rights of individuals. To have smooth and efficient functioning of the nations, it is required that each organ functions according to its authority. The Indian Constitution provides provisions under Article 50 on the separation of powers. It states that the state must take the necessary steps to separate the judiciary from the executive in the public services of the state. It will restrict the authorities’ unfair use of their power or positions and promote the democratic form of government. Article 50 is a part of the Directive Principles of State Policy (DPSPs) under Part IV of the Constitution. It states that no government organ interferes or intervenes with the functions and core powers of the other organs.

Background of separation of powers under the Indian Constitution

Nowadays, the democratic setup is based on the doctrine of the separation of powers. But earlier, there used to be kings who ruled over their kingdoms and had all the powers vested in them. The concept of separation of power was discussed by Aristotle in his book ‘Politics’. According to this, every Constitution must include three organs of the government: deliberative, public officials, and judicial departments. The Roman Republic Government also adopted the principle of checks and balances in the country.

In the 17th century, after the advent of the English Parliament, a British politician, John Locke, also stated three forms of organs in his book ‘Two Treatises of Government’ from a different perspective. He explained in his book that all three organs do not have independent authority or power. According to him, legislation has the supreme authority, and the executive or federative functions are exercised by the monarch. John Locke did not consider all three branches equal.

In the 18th century, a French lawyer named Baron de Montesquieu meticulously theorised the word “trias politica” or the idea of separation of powers. He emphasised the judicial branch’s independence more than most philosophers. He explained that the judiciary must have an actual nature rather than being ostensible and that no one organ or person should execute the functions of every other organ to protect personal freedom.

A point must be noted that this theory was first propounded by Montesquieu as early as 1747 via his book, namely ‘Esprit des Lois’ (The Spirit of the Laws). Montesquieu observed that if all the power is concentrated in the hands of an individual or a group of people, it results in a tyrannical form of government.

Meaning of separation of powers

The term ‘separation of powers” describes the form of government in which the executive, judiciary, and legislative have separate domains of power and authority. Every democratic country follows the doctrine of separation of power. It distributes the powers and functions between the three organs of the government. According to this doctrine, each organ performs its functions without interference from other organs. It is a kind of system of checks and balances that means legislation makes the laws, the executive implements the law, and the judiciary reviews the law. Thus, the legalisation cannot review the laws, the executive cannot make the laws, and the judiciary cannot implement the laws. To ensure that each organ works independently, the doctrine of separation of power was implemented. Not every country follows the doctrine strictly, like the United Kingdom (UK). The UK Constitution (mostly unwritten and uncodified document) includes a provision for the separation of powers to maintain checks and balances between the three organs of government. However, there is still some interfering behaviour on the part of one branch of government with the other.

The countries that have written Constitutions, like India and the United States of America (USA), implement the doctrine in a rigid manner rather than a strict manner. The United States has a presidential system of government, and the doctrine of separation of powers is the foundation of the US Constitution.

The constitutional status of the separation of powers

In India, the doctrine of separation of powers is not applied strictly. Apart from Article 50, the other provisions that substantiate separation of powers are as follows:

  1. Article 123 of the Constitution states that the President can exercise his executive powers under certain conditions.
  2. Article 121 and Article 211 of the Constitution provide provisions for the separation of legislation from the judiciary. It states that legislation cannot discuss the conduct of judges of the Supreme Court and high courts.
  3. Article 122 and Article 212 of the Constitution say that the courts can not inquire about the proceedings of the legislature.
  4. Article 361(4) of the Constitution separates the judiciary from the executive. It states that no court may hold the President or any governor of any state responsible for actions or misconduct committed while carrying out or exercising their official duties.

Significance of separation of powers

The separation of powers is required to protect against putting the power into one hand, which might create nepotism, maladministration, or corruption. This is the mechanism to divide the core functions and powers among the legislature, executive, and judiciary. It is essential in a democratic country. The primary purposes of the separation of powers are as follows:

  1. It protects against excess and abuse of power by an individual or an authority.
  2. It will protect society from the state’s arbitrary, illogical, and dictatorial powers.
  3. All people have their freedoms preserved, and each work is given to the proper government agencies to carry out its related duties effectively.
  4. Each organ of government has its functions and duties granted by the Indian Constitution, and they are expected to carry out their duties within their limits.
  5. The separation of power among the organs of government prevents any one branch from becoming excessively centralised and subject to arbitrary decision-making.
  6. It maintains the balance among all the organs of the government.
  7. It aims to enhance the effectiveness of the government and allows it to perform its core functions independently.

Elements of separation of power

One organ cannot hold all the authorities and functions necessary for the nation’s functions to be carried out effectively. As a result, each organ must carry out its duty in a systematic manner. Legislative, executive, and judicial organs each have their own set of duties and responsibilities. Below is a detailed explanation of each organ.

Legislation

Every country needs laws and regulations to govern itself efficiently. The legislation is the organ of the government which enacts or makes the laws and frames policies for the nation or state. It is also called the rule-making body. Under the Indian Constitution, the legislation includes the Parliament and the State Assembly. The Indian Parliament has two houses: Lok Sabha (the lower house) and Rajya Sabha (the upper house); whereas, the state assembly has Vidhan Parishad (the upper house) and Vidhan Sabha (the lower house). The executive and judicial organs cannot function in implementing and reviewing the law unless and until the legislature frames the law. It is the body composed of the elected representatives of the people, and it represents public power and opinion throughout the nation. It also has the authority to amend or repeal existing laws and regulations. The judiciary functions as an advisory body for legislation, therefore it can make recommendations to the legislature about the formation of new laws and the amendment of existing laws, but it cannot carry out those recommendations. Apart from enacting laws for the nation, it also controls the budgets, executive, or council of ministers. The legislation elects the President, Vice-President, and can impeach the President of the country.

Executive

Another important organ of the government is the executive body. The executive is responsible for implementing and enforcing the laws of the state and country after they have been passed by the legislative branch of the government. The President, the Prime Minister, and the state governors are part of the executive. In the parliamentary form of government, there are nominal executives and real executives. The President is the nominal executive and has executive power granted by the Constitution. But the President is bound to take the advice from the Council of Ministers, and these powers are exercised by the Ministers. Hence, the real executive is the Prime Minister and the Council of Ministers

The executive includes the political executive and the permanent executive. The political executive or ministers are the heads of the state and executive departments. The ministers are elected by the people of the country for a tenure of five years and are responsible for their actions toward the public. These political executives are temporary as they are appointed for a certain period. It is replaced in every election. Ministers must run for reelection after serving one term. Only when their party returns to power as the majority party will they be able to serve as ministers once more. 

The permanent executives (non-political executives) are the civil servants who do not belong to any political executive. They work for governmental departments and are responsible for the day-to-day activities of the government and maintaining peace and order in the state. These executives serve their services till the age of their retirement. They are organised hierarchically into higher and lower relationships and get regular, fixed salaries. 

The executive performs the functions of implementing the laws or policies in the state and makes such appointments as the President appointing the Chief Justice of India and the judges of Supreme or High Courts. The executives are also responsible for defending and preserving the integrity and unity of the country.

Judiciary

The judiciary is the branch that reviews the laws enacted by the legislature. It protects the rights of every citizen of the country, administers justice, and settles disputes. The judiciary comprises the Supreme Court, high courts, district courts, and all other lower and subordinate courts. The decisions made by the Supreme Court or High Courts are binding on all the subordinate courts. The judiciary only interprets and applies current laws, it does not make new laws.

The judiciary is the only body that has the power to intervene and provide a decision in cases of conflict between the Centre and the state, between the state and its citizens, or between the states. All governmental and private bodies are bound to comply with the decisions passed by the judiciary. The Indian judiciary defends the Constitution, protects human rights, and promotes unity and peace. It acts as a check and balance on the government’s legislative and executive organs.

The main functions of the judiciary are to review and administer the laws, protect against the infringement of fundamental rights and violations of the Constitution, and the higher court supervises the decisions passed by its subordinate courts. The Supreme Court in India also serves as an advisory body. On constitutional issues, it may offer its expert advice as per the provision of Article 143 of the Constitution. In certain cases when there is no specific law or precedent for the disputes, the judge, based on their experience and common sense, makes decisions that are called judge-made laws. This is referred to as the doctrine of ‘stare decisis’, meaning ‘stand by the decision’. It makes courts follow previously settled cases to decide the current issue.

Relationship between the organs of the government

The organs of the government have their own functions and powers to run the government, and no organ is allowed to interfere in the functions of others. But the organs have relationships among themselves, which are discussed below:

Relationship between the legislature and the judiciary

In the parliamentary form of government, the legislation makes and enacts the law for the nations, and the judiciary interprets the law and safeguards the rights of the citizens of the nations. The judiciary has the power to declare any law unconstitutional. The legislation can oppose judicial activism and frame the law to overrule certain decisions.

Relationship between the legislature and the executive

Under the parliamentary system, the legislation monitors the functions of the executive, and the executive is the branch of the state that is collectively responsible for the legislation. If the executive loses the confidence of the legislature, it will be dismissed before its tenure is up. The legislature makes the laws and the executive implements those laws in the nations. In the presidential form of the government, the executive is not answerable to the legislature.

Relationship between the executive and the judiciary

The judiciary is an independent body in a democratic government. The executive appoints the judges, and there is an indirect link between the executive and the judiciary. The President and Governor have the power to pardon and reprieve the punishment. The judiciary can review the actions of the executive and can also declare them unconstitutional if they are void.

Judicial overreach

The term ‘judicial overreach’ means the interference of the judiciary in the domain of other organs of the government. The judiciary’s interference in the functions and powers of the legislature and executive is against the doctrine of separation of powers, and it is the practice of misusing the power granted by the Constitution. It creates conflicts between the organs of the government.

Impact of the doctrine of separation of power

The main aim of the separation of powers is to maintain the check and balance system among all three organs of the government. History demonstrates how a monarchy can be established by a central power while the rulers or leaders control the people. Therefore, it is preferable to divide the powers among the authorities by their areas of responsibility rather than centralising the power. According to Lord Action, “Power corrupts, and absolute power tends to completely corrupt.”

The doctrine of separation of powers eliminates monarchy or tyranny and holds the government accountable to the people for its acts. It guarantees justice and safeguards human rights. The operations of each government entity are monitored by the others while staying separate from one another.

Landmark cases related to the separation of power

Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab (1955)

In this case, the Supreme Court held that it is not necessary to implement the doctrine of separation of powers in a rigid manner because the functions of all three organs are sufficiently separated.

Gurdial Singh S/O Jagat Singh v. The State (1956)

In this case, it was observed that Article 50 provides provisions that the state shall take necessary steps to ensure that the executive and judicial bodies are kept separate in the state’s public services.

Kesavananda Bharati v. the State of Kerala and Anr (1973)

It was held that the Parliament can not amend the basic structure of the Constitution. The Supreme Court observed in this case that the Indian Constitution does not incorporate the doctrine of separation of powers in its rigidity, as it does in the United Nations Constitution, but it does anticipate some degree of such separation. One of the elements upon which the system of checks and balances rests is the judicial review expressly granted under Article 226 and Article 32 of the Constitution.

Indira Nehru Gandhi v. Shri Raj Narain & Anr. (1975)

In this case, it was said that the Constitution’s basic structure or core element is the separation of powers and that the judiciary must decide any dispute concerning the adjudication of legal rights.

Union of India v. Sankal Chand Himatlal Sheth (1977)

The Supreme Court in this case said that Article 50 is the directive principle of state policy and the state has to keep the judiciary separate from the executive in the public services. Therefore, it emphasised the necessity of protecting the judiciary from executive interference.

Supreme Advocate on Record Association & Anr. v. Union of India (1993)

In this case, it was observed that Article 50 is one of the nation’s core governing principles and is enshrined in the Constitution. The government is legally obligated to refrain from interfering in judicial selections and to limit its involvement to solely formal or ceremonial functions, ensuring that the wishes and preferences of the judicial family will always prevail.

P.Kannadasan Etc. Etc v. State of Tamil Nadu & Ors. Etc. (1996)

In this case, it was held that when the legislature enacts any law and it becomes invalidated on the ground that the legislature has no competent authority, then the court’s judgment cannot overrule or repeal it. The legislation is free to alter the law as per the judgment. The new law can not challenge the court’s judgment. This is a checks and balances system in a government that incorporates the separation of powers in its.

Conclusion

The doctrine of separation of powers gives freedom to each organ of the government. It protects a person’s right to be free from arbitrary rule and bans organs from taking over the essential functions of other organs. The three organs of the government are the legislative, executive, and judicial organs and cooperation or coordination between the three organs is crucial for the efficient operation of the government. DPSP (Directive Principles of State Policy) includes Article 50 of the Indian Constitution. It imposes requirements on the state that the judiciary and executive organs have independent authority over the state’s public services. The separation of powers restricts the centralization of power.

Frequently Asked Questions (FAQs)

Which provisions of the Indian Constitution speak about judicial review?

Article 13, Article 32, Article 131 to Article 136, Article 143, Article 226, Article 227, Article 245, Article 246, Article 250, Article 254, and Article 372 of the Indian Constitution provide a means of judicial review.

What is the basic structure of the Constitution?

The basic structure of the Constitution is the backbone of the Constitution. In the Constitution,  the term ‘basic structure’ is not defined. It says that the Parliament can not amend the basic structure of the Constitution. In the Kesavananda Bharati v. Union of India (1973) case, the Supreme Court held that the basic structure of the Constitution can not be amended. The separation of powers was also held to be a basic structure of the Indian Constitution.

What do checks and balances mean?

It is a system that prevents any government body from misusing its authority. The checks and balances prevent one organ from acquiring excessive power.

What is the difference between the judiciary and the executive?

The executive body of the government is responsible for formulating and carrying out policies and laws, whereas, the judiciary has been given the authority to review these policies and laws.

References


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